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UPDATE ON RECENT DECISIONS

OF THE

PLANNING AND ENVIRONMENT COURT

AND

COURT OF APPEAL

AND AN

OVERVIEW OF THE IPOLA ACT 2001

By

John Haydon

Barrister at Law, Mediator and Case Appraiser

Townsville

15 March, 2002

© www.ecodirections.com

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1. This paper will touch on five decisions of the Court of Appeal and a number of decisions of the Planning and

Environment Court to give an overview of what is happening with appeals generally, the scope of the conditions

power, the declarations power of the Planning and Environment Court and costs.

2. The second part of the paper deals with an overview of the Integrated Planning and Other Legislation

Amendment Act 2001. These provisions have not yet come into force. As an overview it will not deal with all of

the details.

3. The Planning and Environment Court has issued Practice Direction 1 of 2000. It includes Guidelines to Experts. All

witnesses in the Planning and Environment Court need to be aware and understand these guidelines.

4. New Planning Schemes under the Integrated Planning Act 1997 are expected to be more performance based. This

is particularly so now that no use if prohibited. Strategic Plans will continue to be important.

Selected Court of Appeal Decisions

5. The Court of Appeal in Queensland deals with questions of law arising out of decisions of the Planning and

Environment Court. The decisions provide guidance for the resolution of other planning and environment disputes

following the principles set out by the Court of Appeal. Some decisions have limited value because of the particular

facts and circumstances. Others have wider applications.

6. In Vynotas Pty Ltd v Brisbane City Council (2001) 112 LGERA 206 the Court of Appeal was dealing with the

effect of the Integrated Planning Act 1997 on existing Planning Schemes. Significantly, those Planning Scheme

no longer have the force of law the way they did under the repealed legislation. The following comments made by

the Court of Appeal Judges are of importance:-

[1] DAVIES JA: In March 1999 Brisbane City Council granted approval to a development application by the

second respondent Total Project Control Pty Ltd for a shopping centre on land at Beaudesert Road,

Calamvale. The conditions of that approval were later amended but that aspect of the matter is of no relevance

to the present application. The applicants are the owners of a rival shopping centre in the vicinity of the

approved land and made submissions to the council against the approval. They then appealed to the Planning

and Environment Court against that approval as they were entitled to pursuant to s 4.1.28 of the Integrated

Planning Act 1997. Having failed in that appeal they seek leave to appeal to this Court against the decision of

the Planning and Environment Court. Such leave will be granted only, relevantly, on the ground of error or

mistake in law.

....

[5] It is common ground that s 6.1.29 and s 6.1.30 relevantly applied to this application. Section 6.1.29

relevantly provides:.

"(3) ... the following matters, to the extent the matters are relevant to the application, apply for assessing the

application �


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...

(b) the transitional planning scheme;

...

(h) if the application is for development that before the commencement of this section would have required an

application to be made under any of the following sections of the repealed Act �

(i) section 4.3(1) � the matters stated in section 4.4(3)".

Section 6.1.30 relevantly provides:

"(3) ... the assessment manager must, if the application is for development that before the commencement of

this section would have required an application to be made under any of the following sections of the repealed

Act �

(a) section 4.3(1) � decide the application under section 4.4(5) and (5A)".

[6] Section 4.3(1) of the repealed Act, the Local Government (Planning and Environment) Act 1990, provided:

"A person may make application to a local government to amend a planning scheme or the conditions attached

to an amendment". It was common ground that, before the commencement of the Integrated Planning Act the

subject development would have required an application to the council to amend the planning scheme because

the subject land was zoned future urban and a shopping centre was, under the planning scheme a prohibited

development in that zone.

[7]...The effect of s 6.1.29(3)(h)(i) therefore, at least when read without reference to par (b), appears to be

that, in this case, those enumerated matters, to the extent only that they were relevant to the development

application, applied to the assessment of that application. To construe it so as to require that the assessment

be made as if the application was one for an amendment of the planning scheme would be to substantially

redraft it notwithstanding that it could be given a sensible operation without that.

[8] As to s 6.1.30(3)(a), s 4.4(5) of the Planning and Environment Act provided that in deciding an application

pursuant to s 4.3 a local government was required to approve the application, approve it subject to conditions

or refuse it; and s 4.4(5A) required the local government to refuse to approve an application if �

"(a) the application conflicts with any relevant strategic plan or development control plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict."

[9] Again leaving aside the possible effect of s 6.1.29(3)(b), the quoted requirement in s 6.1.30(3)(a) requires

no more than that, in deciding the application the assessment manager will approve it, approve it subject to

conditions or refuse it; and will refuse it if it conflicts with a relevant strategic plan or development control

plan and there are not sufficient planning grounds to justify approving it despite the conflict. The word

"under" in the context appears to mean no more than "in compliance with". Section 4.4(5) and s 4.4(5A) can

be complied with without treating the application for development approval as if it were a rezoning

application. It is simply a case of substituting the application of those provisions for the equivalent provisions

of the Integrated Planning Act.2 To construe s 6.1.30(3)(a) as requiring that the application be decided as if it

were a rezoning application would require substantial redrafting of the provision.

...

[13] Read in the context of the Act as a whole, s 6.1.29(3)(b) does not say or imply that any specific

requirements with respect to any zone under a transitional planning scheme must be imposed in deciding a

development application or that any such requirements must even be considered in so deciding. On the

contrary the transitional planning scheme, generally, is stated only as one of a number of matters which, to the


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extent that they may be relevant, "apply" for assessing the application. It says nothing about its application, if

any, to the decision making process

[14] But even as to the assessment process, the height restrictions applicable in the business zone did not

apply to the land under the transitional planning scheme at the time of assessment because the land was zoned

future urban; and they would never so apply unless the land was rezoned to business, which would not

necessarily or even probably follow from the granting of the development application. There are two reasons

for this. The first is that, as already mentioned, to rezone the land to conform to the approved use would have

required a rezoning either to the business zone or to a particular development zone. However the provisions of

the transitional planning scheme with respect to particular development zones did not contain any of the

height restrictions which applied in the business zone and there would be no reason to think that, if there had

been a rezoning to conform to the approved use, that would have been any more likely to be one to the

business zone than one to a particular development zone. Secondly a rezoning does not necessarily follow from

the granting of a development application such as this. Consequently, in my opinion, the provisions with

respect to the business zone were not relevant to the assessment of this application pursuant to s 6.1.29. It

follows that they were not required to be applied in the decision making pursuant to s 6.1.30.

[15] In any event the scheme of the Integrated Planning Act appears to be that, so far as it applies to

development and use of premises, a transitional planning scheme no longer has binding force but is of

persuasive relevance only. Thus s 2.1.23 provides that a local planning instrument, which includes a planning

scheme, may not prohibit development on, or the use of premises; and more specifically s 6.1.2(3) provides

that a prohibited use in a former planning scheme6 is taken to be no more than an expression of policy that the

use is inconsistent with the intent of the zone in which the use is prohibited.

...

[18] There was therefore no legal error in the judgment of the Planning and Environment Court and the

application for leave to appeal should be refused with costs.

[19] PINCUS JA: I have read and agree with the reasons of Davies JA, but propose to add some

observations.

[20] The general idea of the relevant provisions of the Integrated Planning Act 1997, contained in Ch 6 of that

Act, is to require attention to be given to provisions comprising a "transitional planning scheme" when

development applications under the 1997 Act are being considered; but the extent to which a transitional

planning scheme should have weight is not plainly stated. One point which is clear is that a use which is

prohibited in the transitional planning scheme may be allowed, although the fact of the prohibition is relevant,

under s 6.1.2(3) of the 1997 Act.

[21] .. it does not appear to me that the legislature intended, by the language used in Ch 6 of the 1997 Act, to

make the provisions of transitional planning schemes absolutely binding, in the decision of development

applications.

[22] On the other hand it is important to note that the 1997 Act did not by Ch 6 create a planless situation.

Citizens expect reasonable stability in the law's treatment of permitted land use. It would be unfortunate if Ch

6 were used to defeat the reasonable expectations of those who have relied on, and perhaps expended

substantial sums of the faith of, existing planning arrangements. The degree of flixibility which Ch 6

contemplates does not justify failure to give considerable weight to planning arrangements, as they existed

when Ch 6 commenced, so far as such arrangements are required to be applied by s.6.1.29(3).


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7. The Court of Appeal has recently examined the scope of the conflict with the Strategic Plan test set out in the

Local Government (Planning and Environment) Act 1990 which is made relevant to Transitional Planning

Schemes by Section 6.1.30(3) of the Integrated Planning Act 1997. The Planning and Environment Court Judge

found that there was a conflict with the Strategic Plan but went onto find that there was sufficient planning grounds

to justify approval notwithstanding the conflict. That decision was overturned by the Court of Appeal in Grosser v

Gold Coast City Council (2001) QCA 424. Justice Thomas and Justice Williams agreed with the reasons for

judgment of Justice White.

[12] WHITE J: The appellant Council of the City of Gold Coast (�the Council�) was granted leave to appeal

a decision of the Planning and Environment Court of 18 August 2000 approving an application by the

respondents for a material change of use of land at Bundall (Williams J, as his Honour then was, Cullinane

and Douglas JJ) on 12 December 2000, s 4.1.56(2) of the Integrated Planning Act 1997 (�I P Act�).

[13] Section 4.1.56(1) of the I P Act limits the grounds of appeal

! to an error or mistake in law;

! that the court had no jurisdiction to make the decision; or

! that the court exceeded its jurisdiction in making the decision. The Notice of Appeal identifies five

grounds of error or want of jurisdiction in his Honour�s reasons for judgment which the appellant

contends would warrant this court allowing the appeal and which, in broad terms, encompass his

Honour�s approach to the relevant planning scheme and his construction of s 4.4(5A) of the IP Act.

[14] The Planning and Environment Court heard two appeals. One concerned the Council�s decision to refuse

a material change of use application by the respondents (applicants below) and the other concerned an

enforcement notice issued by the Council. His Honour found in favour of the respondents on the material

change of use appeal and in favour of the Council in respect of the enforcement notice. It is only with respect

to the former that this appeal is concerned.

Background

[15] The respondents are husband and wife. Mrs Grosser, as found by his Honour, is a well-recognised

exponent of the Japanese sculptured floral art of Ikebana. She commenced teaching Ikebana to small groups in

her home in Southport in 1988. In due course this business became known as the Australian Ikebana Centre. In

1997 she and her husband decided to relocate the business to a purpose built location and to that end found

premises at 44 Ashmore Road, Bundall. The property was purchased by a company controlled by Dr and Mrs

Grosser with the intention of demolishing the existing premises and building a house suitable for teaching

Ikebana. His Honour accepted Mrs Grosser�s evidence that Ikebana needs to be taught in a residential rather

than a commercial environment. Although Dr Grosser is registered as participating in the business it is Mrs

Grosser who is its active principal.

[16] An application was made to the Council to use the property for �Home Occupation (Flower School)�

which was a permissible development in the Residential Dwelling House Zone in which this site was located

and consent was given on 30 October 1997 subject to the following conditions:

�1. The total use area of the home occupation shall not exceed one third of the gross floor area of the dwelling

house or forty-five (45) square metres, whichever is the lesser.


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2. The home occupation shall not attract clientele on a frequent or regular basis. In this regard the home

occupation shall be operated so that no more that [sic] fifteen (15) client visits are made to the premises

within any seven (7) day period.

3. The home occupation shall not operate on Sundays or public holidays or otherwise between the hours of

7.00 pm and 8.00 am.

4. No sign other than a sign not exceeding 0.3 square metres in area and bearing only the name and telephone

number of the occupier and occupation shall be displayed on the premises.�

[17] These conditions were consistent with the definition of �home occupation� in the City of Gold Coast

Planning Scheme gazetted on 11 February 1994 in Part 2 Appendix 2 (�the 1994 Scheme�). It is relevant to

set out those provisions to appreciate the limited nature of this permissible development.

�HOME OCCUPATION � The use of any dwelling house or its curtilage for an occupation or profession

where:

(i) the person carrying on the occupation or profession lives permanently in the dwelling house; and

(ii) not more than one (1) person, other than the person who lives in the dwelling house, is employed or

otherwise engaged in the conduct of the occupation or profession; and

(iii) does not involve the display of goods, whether in a window or otherwise; and

(iv) the provisions of Section 12.3 of this Scheme are complied with; and

(v) the development is licensed as a home occupation under the provisions of the Council�s By-laws.

�

The term, home occupation, shall be followed by a second term describing the type of occupation conducted

and this combination of terms shall describe the development.�

[18] Section 12.3 of the 1994 Scheme provides:

�The provisions of Clauses 12.3.1 to 12.3.3 are development standards applicable to the development of home

occupations and should be read in conjunction with the definition of home occupation contained in Section

2.2. These provisions are additional to any other relevant provisions of this Planning Scheme.

12.3.1 Operation of Home Occupations Purpose:

To ensure that a home occupation will operate without detrimental impact upon the amenity of any residential

development.

Provisions:

12.3.1.1 The total use area of the home occupation shall not exceed one third of the gross floor area of the

dwelling house or forty-five (45) square metres, whichever is the lesser.

12.3.1.2 The home occupation shall not attract clientele on a frequent or regular basis. In this regard the home

occupation shall be operated so that no more than fifteen

(15) client visits are made to the premises within any seven (7) day period. 12.3.1.3 The home occupation shall

not operate on Sundays or public holidays or otherwise between the hours of 7.00 pm and 8.00 am.

12.3.1.4 No sign other than a sign not exceeding 0.3 square metres in area and bearing only the name and

telephone number of the occupier and occupation shall be displayed on the premises.

12.3.1.5 No source of power other than single phase electric motors having a total connected load of

not more than 0.75 kilowatt shall be used.

12.3.1.6 The home occupation shall be operated in such a manner that:


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(i) it does not impose a load on any public utility greater than that which is required for typical development in

the locality; and

(ii) it does not create hazards or cause undue annoyance or disturbance to persons or premises not connected

with the home occupation; and

(iii) it does not interfere with the amenity of the neighbourhood by reason of the emission of noise, vibration,

smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste water, waste products, radio or electrical

interference or otherwise.�

[19] Plans were lodged with the Council on behalf of Dr and Mrs Grosser for a two-storied house which

showed a 45 square metre �Ikebana Teaching Area� upstairs with other rooms designated for personal

domestic use. When the home occupation application was made it was intended that Dr and Mrs Grosser�s

daughter would reside in the new premises and be involved in teaching Ikebana. This, however, did not

eventuate and no one has lived in the dwelling at 44 Ashmore Road as a home. The new building was

approved by the Council as a Class 1 Residential Dwelling, the construction of which was completed in July

1998. Since no one was to live in the house Mrs Grosser incorporated the �domestic� areas into the business.

The large downstairs area described on the plans as �Family Living� became a cafeteria and although a

resource for students of the centre was open to the public and advertised as available for catered functions

generally including external catering. The areas designated on the plans as �Home Occupant Personal

Studio� and �Home Occupant Library Media Room� became a second teaching area where guest lecturers

could give lectures on different areas of art. The area described as �Office� on the plans continued to perform

that function. The area described as �Home Occupant Bedroom Suite Den� became an area where students

practised pottery, other art and computer graphics skills. Mrs Grosser decorated the down stairs walls with

works by local artists which were available for sale to her students and to the public.

[20] In November 1998 an officer of the Council inspected the premises and in February 1999 the Council

issued a show cause notice as to why an enforcement notice should not be issued pursuant to s 4.3.11 of the I P

Act to refrain from committing a development offence or to remedy commission of a development offence by

failing to comply with the conditions of approval for the Home Occupation.

[21] Mrs Grosser responded by lodging a material change of use application under the I P Act for

Educational Establishment (Art School), Public Recreation (Art Gallery) and Cafeteria for the site the

proposal for which substantially followed the way in which the dwelling was then being used. The application

was refused by Council on 17 September 1999 and an enforcement notice issued requiring the cessation of use

of the premises in breach of the conditions which had been imposed for the use of the premises for Home

Occupation.

[22] At least by the time of the hearing below there were, in effect, a number of businesses being conducted at

44 Ashmore Road � a coffee shop offering breakfast, morning tea, lunch, afternoon tea, on-site functions and

off-site catering seven days a week; educational courses including full and part-time courses in Ikebana and

TAFE accredited Certificate in Art courses and classes and workshops in art appreciation, painting and

drawing, pottery and sculpture, garden design, gourmet cooking, use of computers and English; and an art

gallery and shop which displayed and offered for sale equipment used in Ikebana displays, jewellery, original

paintings and books. Some thirteen staff, full and part-time worked at different times at the centre.

[23] The Council refused the application for material change of use on five grounds noted by his Honour at

[11] of his judgment


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�(1) The proposal does not accord with the intent for development in the Residential Dwelling House Zone, as

stated in the former City of Gold Coast Planning Scheme 1994.

(2) The proposal does not accord with the detached housing designation of Council�s Strategic Plan.

(3) The number of on site car parking spaces is insufficient for the proposed uses on site and the car parking

layout does not accord with Gold Coast City Council Local Planning Policy No. 1 � Off Street Vehicle Parking

Requirements.

(4) The proposal is likely to result in an adverse impact on the amenity of the surrounding residential area.

(5) The issues raised by submitters objecting to the proposal are valid and are supported by Council.�

[24] Those grounds of refusal formed the basis of the grounds of appeal to the Planning and Environment

Court.

The location

[25] Number 44 Ashmore Road, Bundall is situated on the southern side of Ashmore Road, a major arterial

highway comprising two traffic lanes in each direction divided by a median strip with a dedicated parking lane

on each side. On the north of Ashmore Road, immediately opposite the subject site, are situated large

commercial enterprises including two Harvey Norman stores with an extensive on site parking area. Land on

the southern side is zoned Residential Dwelling House. On the southern side of Ashmore Road near number 44

some residences were identified below as used for a variety of home occupation and minor commercial

activities. In the two blocks bounded by Upton and Campbell Streets around number 44 his Honour noted that

of the 28 properties which fronted Ashmore Road, nine were separate medical centres and eight were for uses

approved as home occupation. These included an architect�s office, feng shui consultant (changed by the

hearing), two interior designers and a solicitor�s office. The remaining 11 were residences. His Honour also

noted that two sites appeared to be utilised for non-residential purposes without the necessary approvals. He

further noted that development on land south of number 44 along Coogeen Street, which runs parallel to

Ashmore Road, was solely residential.

The relevant planning provisions

[26] The 1994 Scheme was a planning scheme made under the Local Government (Planning & Environment)

Act 1990 (�the P & E Act�) which was in force immediately prior to the commencement of I P Act on 30

March 1998. The 1994 Scheme is a �former planning scheme� within the meaning of s 6.1.1 of the I P Act.

Section 6.1.2 of the I P Act provides that such a planning scheme continues to have effect notwithstanding the

implementation of the I P Act subject to some qualifications.

�6.1.2 Continuing effect of former planning schemes

(1) Despite the repeal of the repealed Act, each former planning scheme continues to have effect in the local

government area for which it was made, subject to subsections (2) and (3).

(2) If a provision of a former planning scheme is inconsistent with chapter 3, to the extent the provision is

inconsistent, chapter 3 prevails, unless this chapter states otherwise.

(2) A prohibited use in a former planning scheme is taken to be an expression of policy that the use is

inconsistent with the intent of the zone in which the use is prohibited.� The provisions (including any maps,

plans, diagrams or the like) of the former planning scheme comprise a �transitional planning scheme� for the

area in the absence of contrary intention in the I P Act, s 6.1.3.


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[27] It was common ground that had the application for material change of use been made under the P & E

Act, since it sought approval for a number of uses prohibited under the 1994 Scheme, it would have been an

application to amend the planning scheme by re-zoning the site pursuant to ss 4.3 and 4.4 of the P & E Act.

[28] When assessing a development application to which a transitional planning scheme applies s 6.1.29(3) of

the I P Act sets out the matters, to the extent that they are relevant, which will be applied. These include,

relevantly, the transitional planning scheme and the applicable matters stated in s 4.4(3) of the P & E Act -

traffic issues and the detrimental affect on the amenity of the neighbourhood in this case.

[29] Such a development application is required under the I P Act by s 6.1.30(3)(a) to be decided pursuant to s

4.4(5) and (5A) of the P & E Act. Section 4.4(5) obliges the local government in deciding an application made

pursuant to s 4.3 to approve the application, approve it subject to conditions or to refuse it Section 4.5(5A)

provides

�The local government must refuse to approve the application if �

(a) the application conflicts with any relevant strategic plan or development control plan; and

(b) there are not sufficient planning grounds to justify approving the application despite the conflict.�

[30] It was undisputed below that 44 Ashmore Road is within the Residential Dwelling House Zone and the

Detached Housing Preferred Dominant Land Use designation under the 1994 Scheme and is surrounded, save

for its frontage to Ashmore Road, by similarly designated sites. All planning permission to use properties in

this vicinity along the southern side of Ashmore Road as medical centres were given before the 1994 Scheme

commenced operation. If and when those properties cease to be used as medical centres, the sites will revert to

their former use as residential dwelling houses. Such a use as a medical centre is a prohibited development

under the 1994 Scheme. All of the consents permitting use of the land for home occupation were given under

the 1994 Scheme.

[31] An appeal from the refusal by the local government of a development application is a hearing de novo

and the Planning and Environment Court must decide the appeal based on the laws and policies applying

when the application was made but may give weight to any new laws and policies it considers

appropriate, s 4.1.5.2(1) and (2) of the I P Act.

[32] It is convenient now to turn to the 1994 Scheme. Part 4 relates to �Residential Zones�. The intent of the

zone as expressed in s 4.3.1 is to implement the objects of the Detached Housing Preferred Dominant Land

Use in the Strategic Plan which is described in Part 1: �The maintenance of residential amenity is a major

priority for the Council in relation to detached housing areas. Residents of such areas have consistently

expressed the view that residential development should be mainly restricted to detached housing. Accordingly

the preferred dominant land use is detached housing on individual allotments. This form of development

facilitates a wide range of domestic activities, including gardening, private recreation and the keeping of pets.

Other development may include townhouse development, integrated housing and aged persons accommodation

subject to such development being at a scale and density compatible with detached housing. A very limited

range of non-residential development which is either ancillary to residential development or directly serves the

convenience needs of the local neighbourhood may also be appropriate in some locations.

[33] Section 4.3.1 of the 1994 Scheme describes to the intent of the Residential Dwelling House Zone.

�It is intended therefore to provide for the development of detached dwelling houses in an almost exclusively

low density residential environment. All residential development with the exception of dwelling houses, dual

occupancy dwellings, aged persons accommodation, townhouse development and integrated


10

housing as well as most non-residential development will be excluded from this zone. The purpose of these

restrictions on development is to provide residents with the assurance that their chosen residential area will

remain free from unwarranted intrusion by incompatible development. All development within the Residential-

Dwelling House Zone will be subject to provisions which seek to ensure a pleasant, low density living

environment. Permissible development is restricted to townhouse development, integrated housing and aged

persons accommodation at densities compatible with low density dwelling house development, as well as non-

residential development which may be compatible with and complimentary to residential development . . .

Within this zone a high priority will be given to maintaining the integrity of residential areas and accordingly

permissible development will not be approved if such development can reasonably be located elsewhere.

Permissible development should generally locate in situations which minimise impact on residential amenity

and which do not introduce additional traffic into minor residential roads including residential access, cul-

desac and minor collector roads. Any permissible development will only be approved if it can be shown that

such development is complimentary to and compatible with the surrounding area.�

[34] Section 4.3.2 sets out the Table of Development for the Residential Dwelling House Zone. Column 1

concerns permitted development which does not require the consent of the Council which is confined to

�Dwelling House and Park�. Column 2 concerns �permitted development subject to conditions�.

Those nominated are:

�(a) Dual occupancy dwelling house, Family day care home, Outdoor recreation (private non-illuminated

tennis courts only), Special accommodation.

(b) Minor building work in respect of any of the developments specified in Column 3 where that development

exists on the site and has been lawfully established�. Column 3 concerns �permissible development� which

may be undertaken only with the consent of the Council. They are: �Aged persons accommodation, Caretakers

residence (only on sites in excess of 1200 square metres), Child Care Centre, Townhouse development (only in

accordance with s 4.12), Display home, Home occupation, Integrated housing, Neighbourhood store, Outdoor

recreation (private illuminated tennis courts only), Public utility, Temporary sales office.� Column 4 concerns

�prohibited development� which is development which may not be undertaken and that is any development

other than that referred to in columns 1, 2 and 3.

[35] That the intention of the planning authority was that the Scheme was not to be lightly departed from is

reflected in s 17.1.2.3:

�Without limiting the generality of the Council�s discretion to refuse an application, it shall be sufficient

reason to refuse an application to rezone land where such rezoning would be in conflict with any provision of

this Planning Scheme applicable to the area sought to be rezoned.�

[36] It is no longer necessary to apply to rezone land if an applicant wishes to use land for purposes

prohibited by its current zoning, and a development application under the IP Act relating to a transitional

planning scheme is not to proceed as if it were a re-zoning application. The transitional planning scheme

is one of a number of matters which s 6.1.29(3) of the IP Act directs shall be considered when assessing an

application for material change of use and is, therefore, as Davies JA said [14] in Vynotas Pty Ltd v Brisbane

City Council [2001] QCA 24; (2001) 112 LGERA 206, of persuasive relevance only. Nonetheless, s 6.1.2(1)

and (3) plainly require weight to be given to the fact that the use sought was a prohibited use under the

transitional planning scheme. Making the transitional planning scheme one of several matters to take into

account does not �create a planless situation� as Pincus JA said in Vynotas. �Citizens expect reasonable


11

stability in the law�s treatment of permitted land use. It would be unfortunate if Ch 6 were used to defeat the

reasonable expectations of those who have relied on, and perhaps expended substantial sums on the faith of,

existing planning arrangements. The degree of flexibility which Ch 6 contemplates does not justify failure to

give considerable weight to planning arrangements, as they existed when Ch 6 commenced, so far as such

arrangements are required to be applied by s 6.1.29(3).� [22] Thomas JA agreed with those observations at

[24]. There can be little doubt that s 6.1.2 of the IP Act maintains the importance of consistency with the intent

of a transitional planning scheme.

The judgment below

[37] The Council contends that the learned judge below exceeded his jurisdiction by reflecting upon the

appropriateness of the 1994 Scheme in so far as it concerned the application of the Residential Dwelling

House Zone to 44 Ashmore Road and concluding that it was not an appropriate designation for that site. Mr

Gibson QC for the respondents submitted that far from falling into error, his Honour was doing no more than

assessing the merits of the application which would, under a rezoning application, fall to be considered.

[38] The proper approach of the Planning and Environment Court and of its predecessor, the Local

Government Court, to matters of planning policy has long been recognised as one of restraint. Most recently

this Court affirmed the desirability of a self-limiting approach, at least when considering town planning

matters in Holts Hill Quarries Pty Ltd v Gold Coast City Council [2000] QCA 268 unreported decision of 14

July 2000. The Court quoted with apparent approval at [42] the following passage from the judgment of Quirk

DCJ in Elan Capital Corporation Pty Ltd v Brisbane City Council [1990] QPLR 209 at 211: �It should not be

necessary to repeat it but his [sic] Court is not the Planning Authority for the City of Brisbane. It is not this

Court�s function to substitute planning strategies (which on evidence given in a particular appeal might seem

more appealing) for those which a Planning Authority in a careful and proper has to adopt (sic) (Brazier v

Brisbane City Council 26 LGRA 322 at 327). As was observed by Carter J in Sheezel & Anor v. Noosa Shire

Council [1980] QPLR 130 (when he then constituted this Court), it would be quite inappropriate for this Court

to deal with an individual application for rezoning in a way which might be construed as determinative of

some wider question. Adopting the phraseology of those cases which deal with the non-derogation principle, I

feel that to allow this appeal would be to �cut across� in quite unacceptable manner, a planning strategy which

has been adopted by the Planning Authority and publicly exhibited for community comment.� This stated a

proposition which the Court said was �common sense . . . for which no authority was required�. See also

Ampol Petroleum (Q�land) Pty Ltd v Pine River Shire Council [1989] QPLR 133 per Row DCJ at 134, 136;

Bullock v Hervey Bay Town Council [1983] QPLR 98 per Carter DCJ at 100; Cherrabun Pty Ltd v Brisbane

City Council [1985] QPLR 205 per Quirk DCJ at 208; and the discussion in Fogg Land Development in

Queensland (1987) pp 390 et seq.

[39] After setting out the intent of the Residential Dwelling House Zone in the 1994 Scheme and noting that

the uses applied for of educational establishment, indoor recreation, shop and restaurant were prohibited

uses, the learned judge below said, in a passage which Mr Keane QC for the Council submitted clearly

demonstrated an erroneous approach to the task, �In order to consider the appropriateness of the provisions

of the intent for the Residential Dwelling House Zone in this case, it is necessary to consider the range and

type of uses already approved in the area� [21].

[40] It is not necessarily indicative of error to use the expression �appropriate� when referring to the intent

for the particular land designation but, in context, it may point in that direction. His Honour proceeded after


12

the passage quoted above to describe the use of the land on the northern side of Ashmore Road as �intensive

commercial and retail development� and the use of the land on the two blocks around the subject site on the

southern side which, as has been mentioned above, comprise 28 properties being 9 medical centres and 8

home occupation uses and 2 unlawful non-residential uses and noted that land to the south fronting Coogeen

Street was purely residential.

[41] His Honour concluded:

�In these circumstances, having regard to the range and type of uses already approved in the area, I do not

regard the provisions of the Residential Dwelling House Zone as entirely appropriate to the subject land. No

doubt some type of residential development on the site would be possible. However, this, in my view, is unlikely

when one considers the problems presented by Ashmore Road and the commercial developments opposite (see

eg Harburg Investments Pty Ltd v Brisbane City Council & Ecovale Pty Ltd no. 2163 of 1999, unreported

decision of Skoien SJDC delivered 5 May, 2000)�. [27]

[42] There are two further passages in his honour�s reasons which Mr Keane submitted would suggest that he

evaluated and found wanting the local government�s planning policy. His Honour referred to certain evidence

given by Mr Grummit, a town planning consultant, who had given evidence about Special Development Areas

(�SDA�) particularly SDA no. 2 (low density office development) which was a special development area which

could not easily be accommodated in the existing preferred dominant land use designations described in the

1994 Scheme. These were areas situated throughout the City in locations which had a high degree of

accessibility to the main road network and a proximity to established commercial centres. The 1994 Scheme

described these areas as giving an opportunity to establish development which would provide an effective

buffer between residential premises and heavily trafficked roads adjacent to commercial development, see

Parts 1 � 23 of the 1994 Scheme.

[43] His Honour commented that the subject site was one which clearly accorded with such a description

although there was no suggestion that it was located within a SDA no. 2. A few paragraphs later there is a

suggestion that his Honour saw the southern side of Ashmore Road, in planning terms, as more appropriately

being located within just such an SDA no. 2 area. �A major negative impact upon the amenity of lots fronting

the southern side of Ashmore Road is created by the existing extensive commercial area along the northern

side of Ashmore Road and by the high traffic levels on that road. I am satisfied that the subject site and the

uses for which approval was sought will provide an effective buffer between the purely residential areas to the

south in Coogeen Street and the heavily trafficked Ashmore Road and extensive commercial development

immediately to its north� [41].

[44] It is well recognised that a town planning appeal court may depart from the planning intent of the local

government if the local government has itself departed from that intent or the subject land has been given a

designation that was and remained invalid, Beck v Council of the Shire of Atherton (1991) QPLR 56 at 59,

quoted with approval by Newton DCJ in Pacific Exchange Corporation Pty Ltd v Gold Coast City Council

[1998] QPELR 335 at 339 and following.

[45] It may be that his Honour mis-recalled some matters of fact such as caused him to suppose that the

Council had itself departed from the 1994 Scheme in its approach to sites along the southern side of Ashmore

Road in the vicinity of number 44. At [42] he said:


13

�I have already observed that the respondent has approved numerous non residential uses, including some

eight medical centres in the two blocks to the east and west of the site. The majority of the medical

practitioners based at these centres are specialists, and, as such, could reasonably be expected to draw

patients from a very wide area of the city (or beyond). In these circumstances the centres are serving not just

the convenience needs of the local neighbourhood, but those of a wider area. I accept the contention that this

indicates acquiescence by the respondent in non-residential uses in the subject area and also in the

establishment of a precinct in the vicinity of the site which serves a wider function than the provision of

services to local residents only.� In the following paragraph his Honour commented that by the provision of

these services customers were drawn from a wide area and fulfilled uses envisaged by the provisions relating

to SDA no. 2 �rather than those of the detached housing designation�. He concluded:

�To some extent it may be said that the Strategic Plan so far as this particular area is concerned has simply

been overtaken by events to the stage where this portion of Ashmore Road is really dominated now by semi-

commercial aspects of the medical centres and home occupations� [73].

[46] His Honour referred to Plafaire Projects Australian Pty Ltd v Council of the Shire of Maroochy [1991]

QPLR 87 at 88. That was a very different case. Quirk DCJ noted the importance of the strategic plan as a

planning instrument but that the Shire itself had approved a rezoning to a different zone land next to the

subject land and which had affected the future of the area in a very significant way. In a passage which

resonated with his Honour, Quirk DCJ said the court was �dealing with a plan which (so far as this particular

area is concerned), has simply been overtaken by events.� See also his comments in Beck at 59.

[47] It seems that his Honour failed to recall that the medical centres upon which he appeared to place so

much reliance for this state of affairs had been approved prior to the 1994 Scheme, that none had been

approved since, that they were a prohibited development use for this area and if they ceased to operate as

medical centres the sites would revert to being residences and that they were contrary to the clearly expressed

intent of the Strategic Plan and that the Council had not department from adherence to that Plan. His Honour

made findings about amenity, traffic consideration and the objections to the application and no complaint is

made about those findings. Even though the Strategic Plan is one of the factors to take into account it is an

important factor. It appears that his Honour�s perceived error about the medical centres so infected his

approach that he impermissibly �cut across� the planning strategy adopted by the Council and exceeded his

jurisdiction.

[48] The second major ground of appeal concerns his Honour�s approach to s 4.4(5A) of the P & E Act. He

noted conflict with the Strategic Plan but, Mr Keane submitted, fell into error by identifying a threshold

discretion which is not in s 4.4(5A)(a) and exercised it in favour of the respondents without

considering the discretion in s 4.4.(5A)(b). Of s 4.4(5A)(a) his Honour said: �Despite the conflicts with the

Strategic Plan that have been identified, these are not, in my opinion, so fundamental (italics added) as to

enliven the provisions of section 4.4(5A) of the Local Government (Planning & Environment) Act 1990 which

required that an application be refused if it conflicts with any relevant strategic plan and there are not

sufficient planning grounds to justify approving the application despite the conflict�.

[49] Section 4.4(5A) is a simple two-stage process which first requires the identification of conflict with the

Strategic Plan, then, if conflict is present, the application must be refused if there are not sufficient planning

grounds to justify approving the application despite the conflict. Mr Gibson submitted that it was not

appropriate to take the words �so fundamental� out of the judgment and focus upon them as an indication that


14

his Honour had introduced, in effect, a discretion at the first stage. Even though his Honour referred to

various matters which might be described as �planning grounds� earlier in his judgment, it is not at all

apparent that by using the expression �so fundamental� he did not apply a test different from that set out in

the section. This constituted an error of law and because his Honour has not overtly exercised the discretion in

the way in which he was required by s 4.4(5A)(b) his decision is flawed. [50] Mr Keane submitted that this Court ought to decide the issue of the sufficiency of the planning grounds

for itself because all the evidence that could have been adduced in favour of the respondents was before the

Planning and Environment Court. He contended that none of that material indicated any �positive� planning

grounds to support approval of the proposal. As was pointed out by Mr Gibson, the section itself does not refer

to �positive� planning grounds. However it does require that the planning grounds to be �sufficient�. The

discretion is couched in negative terms, that is, that the application must be refused if there are not sufficient

planning grounds. This might suggest that something more is required than negative impact on the

surrounding amenity and want of relevant objection.

[51] The hearing took three days before the Planning and Environment Court. No evidence was adduced

which could constitute sufficient planning grounds to approve the application despite the conflict. In argument

before this Court no potential area of evidence which might do so was identified. There is,

therefore, no utility in returning the matter to the Planning and Environment Court.

[52] When the Court gave leave to appeal it ordered that the costs of the application be costs in the appeal.

[53] The orders of the Court should be:

1. Appeal allowed with costs to be assessed.

2. Set aside the order of the Planning and Environment Court and in lieu thereof order that the appeal to

that court be dismissed.

8. The question of town planning or community need is often a matter of debate before the Planning and Environment

Court. The evidence will vary in each individual case. The question of law which the Court of Appeal examined

related to whether or not the Planning and Environment Court Judge went too far in finding that there was no need

for the tavern facilities proposed in Arksmead Pty Ltd v Gold Coast City Council [2001] 1 Qd R 247. The

appeal by the unsuccessful developer to the Court of Appeal was dismissed. The following comments by the Court

of Appeal Judges are of assistance:-

[1] THE COURT: This is an appeal from a judgment given in the Planning and Environment Court at

Southport on 23 April 1999. The formal order was dated 13 May 1999.

[2] On 21 October 1997 the appellant, the owner of vacant land at 2 Bell Place, Mudgeeraba village, applied

to the first respondent under s. 4.12(1) of the Local Government (Planning and Environment) Act 1990 for

town planning consent to use the land, 8,030 square metres in area, for a tavern, a drive-through bottle shop,

showrooms, and a car wash. The first respondent failed to make a decision on the application in the required

time and so was deemed to have refused it. The appellant then instituted its appeal to the Planning and

Environment Court in which it was unsuccessful. We shall set out in greater detail later his Honour�s reasons

for dismissing the appeal, but, in summary, they were that the tavern, the bottle shop and the car wash, for

which there was no proved need in Mudgeeraba village, would adversely affect the amenity of the village. His


15

Honour made it clear that the �need� he was referring to was community need �in the planning sense�, and not

the commercial need of a developer or the needs of those who oppose a development.

[3] �Amenity�, as Dr Alan Fogg wrote in his Land Development Law in Queensland (1987), is �one of the most

over-employed words in the vocabulary of planning jargon � � (p. 430), but it is accepted that the word refers

to �that element in the appearance and layout of town and country which makes for a comfortable and pleasant

life rather than a mere existence�: Ex parte Tooth & Co. Ltd; Re Parramatta City Council (1955) 55 S.R.

(N.S.W.) 282 at p. 306. The concept of amenity is wide and flexible, and intangible factors and subjective

considerations may be relevant to a decision on the effect of a proposed use on the amenity of the area

affected: see Broad v. Brisbane City Council & Anor [1986] 2 Qd. R. 317. Such factors and considerations

were relevant in this case.

[4] His Honour�s decision was then that, if the sought-after consent were to be given, the comfort and pleasure

of residents of, and visitors to, Mudgeeraba would be diminished by the intrusion of activities for which there

was no need.

[5] By operation of s. 6.1.25 of the Integrated Planning Act 1997 the Local Government (Planning and

Environment) Act, now repealed, continues to apply to this proceeding. Under s. 7.4(3) of the latter act an

appeal to this court may be made only on the grounds of error or mistake in law, or absence of, or exceeding,

jurisdiction.

[6] The appellant contends that his Honour made three errors of law: first, in considering the question of

need, secondly in dealing with the question of whether the amenity of the village would be affected by the

appellant�s proposal, and thirdly in confining his attention to the appellant�s final proposal for the

development rather than considering as well a proposal accepted after the institution of the appeal by the first

respondent.

[7] The first step in the appellant�s argument on the question of need was to refer to decisions of the Local

Government Court and the Planning and Environment Court in which it had been held that it was not essential

for success on an application for town planning consent to establish need for the proposed use: Zaini & Anor

v. Caboolture Shire Council [1984] Q.P.L.R. 223 at p. 225; W. H. Bowden v. Pine Rivers Shire Council &

Anor [1986] Q.P.L.R. 268, at pp. 269-270; Theodorou v. Redland Shire Council [1987] Q.P.L.R. 11 at p. 14;

and Ogilvy v. Redland Shire Council & Ors [1996] Q.P.E.L.R. 205 at p. 210. That proposition is not in doubt -

so far as it applies to a case in which the question of need has not become an issue. There are, it may be

accepted, many cases in which consent is applied for in which an issue of need does not arise. When that is so

there is no reason to conclude that the applicant should be required to establish need.

[8] We see no reason in principle, however, why an issue of need, or its absence, cannot properly arise on an

application for consent. As Quirk D.C.J. said in Zaini & Anor v. Caboolture Shire Council, an appeal arising

out of the respondent�s refusal of an application for consent to use land for a catering shop and fruit stall:

I am not at all sure that it is essential, where an application for approval for a consent use is being dealt with,

that it be shown that a �need� (as it is properly understood in a town planning context) for the proposal exists.

In many cases it may well be a relevant consideration . . . (p. 225, our emphasis) The same judge said this in

Theodorou v. Redland Shire Council, an appeal against the respondent�s refusal of an application for consent

to construct a service station: I should say something about �need� as the matter was raised in the appeal and

was the subject of some evidence. The relevance of �need� where a discretionary use is being considered has

been the matter of some debate. I regard it as a factor which (while by no means being determinative) can at


16

times be considered. For example, the absence in an area of a particular facility which would be of benefit to

the community might be a matter which would favour an approval of a development that would lead to the

provision of such facility. It is in the context of �community interest� that such matters are judged. (p. 14)

Here the argument for the appellant was that while proved need for �licensed facilities� can work in favour of

an application, proved absence of need cannot work against a proposal.

[9] For that proposition we were referred to a passage in the reasons of Quirk D.C.J. in Hughes & Ors v.

Emerald Shire Council & Ors [1996] Q.P.E.L.R. 110, an objectors� appeal against approval of an application

for consent for the �development� of an hotel: The matter of need may, in some circumstances, work in favour

of a particular application (Theodorou v. Redland Shire Council (1987) Q.P.L.R. 11). Usually however, the

fact that a particular proposal might give rise to commercial difficulties for competitors is not relevant unless

it is �accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of

facilities available to the local community� (Kentucky Fried Chicken Pty Ltd v. Kantidis (sic) (1978) 140

C.L.R. 675 at 687). (p. 112) There was in this case no issue of the kind referred to in the passage cited by

Quirk D.C.J. from Kentucky Fried Chicken Pty Ltd v. Gantidis, which comes from the reasons of Stephen J.,

but the question of need was an issue. It may be noted that Quirk D.C.J. did not explicitly say that proved

absence of need cannot work against a proposal, nor does it necessarily follow from what his Honour said. It

was submitted to us on behalf of the appellant that the principle it sought to draw from the passage from Quirk

D.C.J.�s words in Hughes & Ors v. Emerald Shire Council & Ors was applied in Jenk Holdings Pty Ltd v.

Whitsunday Shire Council [1998] Q.P.E.L.R.151, in which consent for use of land for a tavern was the subject

of the appeal, but as we read the reasons given in that case it was the principle drawn from Kentucky Fried

Chicken Pty Ltd v. Gantidis that was applied.

[10] In Whitehead & Ors v. Hervey Bay City Council & Ors [1998] Q.P.E.L.R. 55, an appeal arising from the

approval of an application for consent for the construction of a child care centre, the primary judge in the

present matter took the view that evidence directed to the question of need was irrelevant: During the hearing,

I ruled that the evidence directed towards the question of need in this case was irrelevant. The matter of need

might, in some circumstances, work in favour of a particular development. See, for example, the decision in

Hughes & Ors v. Emerald Shire Council & Ors (1996) Q.P.E.L.R. 110, which accepted that a clearly

demonstrated and unmet need might be a positive reason in favour of consent. At the other end of the scale, it

may be shown that a proposed development is �accompanied by a prospect of a resultant overall adverse

effect upon the extent and adequacy of facilities available to the local community�. See the decision of the

High Court in Kentucky Fried Chicken Pty Ltd v. Gantidis (1978) 140 C.L.R. 675. It became apparent that the

question of need here was in neither of those extreme categories. (p. 59) With respect, we do not think it

follows from Quirk D.C.J.�s words in Hughes & Ors v. Emerald Shire Council & Ors that the question of need

can arise only in the two �extreme categories�. At all events his Honour appears to have taken a different view

in the present matter from that he expressed in Whitehead & Ors v. Hervey Bay City Council & Ors, and it is

his analysis in this case with which we are concerned. This court is of course not bound by any decision of the

Planning and Environment Court on a question of law, although decisions of that court are entitled to respect.

[11] The respondents include Ecovale Pty Ltd, which owns the Wallaby Hotel in Mudgeeraba, and Donald and

Celia Murphy, who own and operate a licensed restaurant in the area. On their behalf we were referred to

quite a long list of cases in which need, or its absence, had been an issue. It will suffice to refer to two of the


17

cases, which demonstrate clearly how the issue of need, or its absence, can be relevant. The Readymix Group

Ltd v. Brisbane City Council & Ors [1982] Q.P.L.R. 46, an appeal against the Council�s refusal of consent for

a use which could not be made of the land without consent, came before Byth D.C.J. in the Local Government

Court at Brisbane. The appellant had sought permission to operate a quarry in the non-urban zone. His

Honour dismissed the appeal. He found that the community had a continuing need for aggregates and road-

base materials, but, having regard to the �opposing factors in the case�, did not find that the community need

was such that the land in question should be quarried. His Honour said, �it would be convenient to the

operators to work this site. I find that the resources and the reserves of road-base material and aggregate in

and near Brisbane are such that it cannot be said that public need requires the quarrying of this particular

site, in all the circumstances� (p. 54). The �opposing factors� included �detriment to the present and future

amenity of the area, and damaging effects on roads by heavy haulage operations� (p. 55).

[12] A more recent decision that turned on considerations of need and effect on amenity was Trio Pearl Pty

Ltd & Anor v. Council of the City of Gold Coast & Anor [1996] Q.P.E.L.R. 179 before Newton D.C.J. in the

Planning and Environment Court at Southport. It was an objectors� appeal against a decision of the Council to

approve the use of land in a residential-dwelling house zone for a child care centre. His Honour allowed the

appeal, concluding that there would be an unacceptable impact on the amenity of the surrounding residential

properties by the noise from children and traffic expected to result from the proposed use and that no sufficient

need had been demonstrated that would warrant the proposal�s proceeding (pp. 184, 190).

[13] In each of those cases the effect on amenity and need were considered and in each a detrimental effect on

amenity together with an absence of need was decisive. It is difficult to see how it could be said that their

Honours proceeded upon a wrong principle in treating the absence of need as a relevant consideration. In

such a case, if it is decided that the proposed development would have a detrimental effect on the amenity of

the area in question, the judge must then decide whether, notwithstanding the detrimental effect on the amenity

of the area, there has been shown to be a need for the proposed use which would render the effect on the

amenity of the area justifiable.

[14] Neither the Readymix case nor the Trio Pearl case was a case in which �licensed facilities� were part of

the proposed use. On behalf of the appellant it was asserted that cases in which a liquor licence is required

are in a special category. It was argued that their being in a special category adds weight to the proposition

that the proved existence of need is something which may bring about a result favourable to an applicant but

that consideration of absence of need was denied to the Planning and Environment Court. For that proposition

reliance was placed on a number of provisions of the Liquor Act 1992 applicable to a general licence, which

was what was required by the appellant.

[15] Section 116(2) of the Liquor Act provides that an applicant for a general licence must satisfy the chief

executive of the department that the licence applied for is �necessary to provide for reasonable requirements of

the public for liquor and related services in the locality to which the application relates�. Section 116(3)

provides that an applicant must give certain specified information to the chief executive for the purpose of

satisfying him or her about the reasonable requirements of the public as mentioned in subsection (2).

Subsection (4) provides that in �deciding the reasonable requirements of the public� the chief executive must

take into account information about the matters mentioned in subsection (3) and must have regard to:

(a) the population and demographic trends in the locality; and


18

(b) the number and kinds of persons residing in, resorting to or passing through the locality, or likely in the

foreseeable future to do so, and their respective requirements or expectations; and

(c) the extent to which any requirement or expectation-

(i) varies during different periods or at different times; and

(ii) is lawfully met by other premises, licensed or unlicensed; and

(d) the likely health and social impact that granting the application would have on the population of the

locality. Section 118A provides that, in relation to such an application, a member of the public may make a

written submission to the chief executive about:

(a) the reasonable requirements of the public in the locality to which the application relates; and

(b) the matters to which the chief executive must have regard under section 116.

The effect of s. 29A and s. 30 is, however, to exclude from those entitled to appeal against a decision of the

chief executive to the Liquor Appeals Tribunal members of the public who have made written submissions to

the chief executive under s. 118A.

[16] It was argued on behalf of the appellant that those provisions constituted a code in accordance with

which questions of need for premises requiring a general licence are to be decided. If that is correct then the

question of need or the absence of it would, one might think, be completely removed from the purview of the

Planning and Environment Court.

[17] How the existence of need and not its absence could then be considered relevant by the Planning and

Environment Court, as contended on behalf of the appellant, is difficult to comprehend. His Honour the

primary judge referred to that difficulty in the following passage in his reasons: In this case, town planning

need has been an actual issue between the parties. It was Arksmead�s case at the hearing that there was a

positive need for this hotel and bottle shop at Mudgeeraba. Its opponents resisted that claim, and led evidence

to the contrary. It is said for Arksmead that, while a demonstration of need would work in its favour, the

absence of need is not a factor which could work against its proposal. It is true that the presence of need does

not have to be demonstrated here to succeed in the application for consent. However, once the issue becomes

the subject of evidence, the applicant always runs the risk that there may be a finding that there is no need. If

that happens, it is disingenuous to say that the question of need should be disregarded, as it cannot work

against the proposal. If the evidence shows that there is no need, then that can ill be a reason for rejecting the

application for consent. The appellant�s argument in reliance of the Liquor Act nonetheless has we think some

merit, for to reject it results in acceptance that need may be an issue in two fora. There is, however, nothing

express in either the Liquor Act or the Local Government (Planning and Environment) Act to that effect. The

result of accepting the appellant�s argument would be to eliminate an obvious issue that in the ordinary course

of things could arise in a case in which a detrimental effect on amenity is the principal issue, as in the

Readymix and the Trio Pearl cases - and of course in this case. Such cases would then be unnaturally

circumscribed. There is also the important consideration that members of the public cannot have their

legitimate concerns aired on appeal from a decision of the chief executive. To construe the provisions of Acts

in the way contended for by the appellant would be to deprive them of an avenue of appeal. Furthermore, the

approval of more than one authority is a common feature in commercial projects that require town planning

authority approval: Walker v. Noosa Shire Council [1983] 2 Qd. R. 86, at p. 90.

[18] Taking those matters into account, we conclude that the legislature did not intend to deprive the Planning

and Environment Court of the authority to consider the question of need or the absence of it in a case like the


19

present one; and see also: Bell & Ors v. Brisbane City Council & Anor [1982] Q.P.L.R. 375, at p. 378, and

Poir Hotels Pty Ltd v. Brisbane City Council & Anor [1989] Q.P.L.R. 188, at p. 190. His Honour made no

error of law on that subject. After a detailed analysis of the evidence including that of Mr Peter Kleineberg,

hotel and tavern consultant, the only witness who gave evidence on the question of need on behalf of the

appellant, his Honour concluded that the appellant had failed in its attempt to demonstrate that there was a

need for the proposed tavern and bottle shop � and indeed there was what his Honour called a �positive

absence of need�. Such a conclusion was open on the evidence and relevant to his Honour�s final

determination. We should add that the appellant�s case was argued in such a way as to treat the issues of need

and amenity as discrete. To divide his Honour�s reasons into separate compartments is to misconstrue them:

the amenity issue and the need issue were necessarily related.

[19] We now pass to the argument on the amenity issue.

[20] In the reasons his Honour gave for his decision he discussed the community of Mudgeeraba and its

character:

The evidence established that Mudgeeraba is a village whose origins lie in the last century. It is unique on the

Gold Coast. Physically, it is characterised by buildings in the distinctive colonial style. Emotionally, its

inhabitants show a sense of pride in the village, with strong community feeling. A number of local witnesses

gave evidence, in addition to the town planners. In particular, Mrs Goff and Pastor Magee spoke of the strong

sense of community among its residents. Mrs. Simpson gave evidence to the same effect. As well as appearing

on her own behalf she appeared on behalf of the Mudgeeraba Community Association. Her presence

throughout the trial was a constant reminder of the community�s rejection of Arksmead�s proposal. His

Honour referred to another nearby centre on the Gold Coast, Robina: Mudgeeraba can be compared to

Robina, which lies only three kilometres to the east. It is a very large and recent development. It is a business

centre, while Mudgeeraba remains a district centre. A development control plan for Mudgeeraba shows,

consistently with the relevant strategic plan, that one of its objectives was to �maintain and promote a colonial

village atmosphere in the Mudgeeraba Business Centre�.

[21] His Honour referred to objections to the proposal: This project has resulted in many objections. There

are 240. They concentrate on the perceived problems of increased noise from the hotel bottle shop, the

increase in traffic to the development, conflicts with the D.C.P. 3, and the impact of the development on the

�village� atmosphere of Mudgeeraba. A petition was collected. There are some 1,300 names in it. The

grounds of objections are these:

1. Undue offence, annoyance, disturbance and inconvenience to persons who reside or work or do business in

the locality, and travel to or from church and school in the locality, and

2. If the application is granted the amenity, quiet or good order of the locality would be lessened. The evidence

revealed that Ecovale had given support to the organized opposition. That is not surprising. A public meeting

was chaired by Mr David Anderson, from the Wallaby Hotel. An advertisement against the proposal was

funded by Ecovale. It is necessary to discount the level of objections, and the number of petitioners, because of

such self-interested activities. Even when that is done, it is clear that there is a high level of local opposition to

this proposal. The opposition centres on the proposed hotel and bottle shop. That opposition should be given

weight for two reasons. It is relevant to the question of amenity, and also to the question of need. Amenity does

not include just the physical appearance of the surroundings. It also includes the emotional or sentimental

feelings that people may have about a place. An explanation for the amount of opposition can be found in the


20

evidence about the village character of Mudgeeraba. Not only does it have physical characteristics based on

its colonial background, it also has generated a strong community feeling about its future. Those strong

feelings have given rise to much of the present opposition. Those feelings should be taken into account, with

respect to the amenity issues.

[22] His Honour recorded his conclusions as follows:

Here, the evidence shows that the tavern, the bottle shop, and the car wash, will have a detrimental impact on

the amenity of the Mudgeeraba village. Some of the physical impacts are slight and have already been

discussed � such as traffic. Inevitably, there would also be some impact from noise and the occasional unruly

behaviour of patrons, no matter how well designed the building, or well managed its operation. Such impacts

are out weighed by those of a more intangible kind. It is the very presence of a development including a tavern

and bottle shop which will be a detriment. Its location, which overlooks the playing fields of Firth Park, should

also be kept in mind. That is an area which is enjoyed by many families and children. Overall, the evidence

demonstrates that the amenity of the Mudgeeraba village will be diminished by this proposal, including as it

does a tavern and bottle shop. The proposed car wash will have a slighter impact on amenity. The question of

the midblock pedestrian linkage has been dealt with. The question of a �contribution to the village� is to be

judged by requirements of the town planning scheme. While there may be other functions which could be

introduced onto this land (as Mr Vann observes) that is not a conclusive objection. The topography, and the

absence of any residences immediately nearby, greatly reduces the impact of the criticism, that this proposal

turns its back on the village. From a design point of view, it is the car wash which attracts criticism. The

proposal here is to engraft a mock colonial design on a piece of contemporary machinery designed to assist

the owners of motor vehicles. The hotel and the showrooms might readily be given a suitable colonial design.

The bottle shop might just be included in that list. However, it is not easy to see that the car wash is a �visually

appropriate� structure. It is necessary to keep steadily in mind the planning provisions in para 2.4.5.3 � the

development that might be permitted in this precinct. The hotel and car wash (the latter accepted to be within

the meaning of �service industry�) have to be considered on merit in that precinct. This court has the

advantage of evidence not available to the Council. It is apparent that the positive absence of need, the

duplication of facilities, and the detrimental impact on amenity which would be caused by the tavern, the bottle

shop and car wash, and the undesirable appearance of the car wash, mean that the application should be

rejected. There is not �sufficient merit� to enable approval to be given. On behalf of the appellant it was

submitted that his Honour�s conclusion concerning the effect of the proposal on the amenity of the area was

flawed in that he took into account two matters which he ought not to have taken into account: first, Mrs

Eunice Simpson�s presence throughout the hearing of the appeal, which, as can be seen in a passage from his

Honour�s reasons quoted above, he described as �a constant reminder of the rejection of Arksmead�s

proposal�; and secondly, the petition with some 1,300 names on it.

[23] His Honour�s comment concerning Mrs Simpson�s attendance at the hearing does not reveal that his

Honour made the suggested error of law. It goes no further than recording, in an innoxious comment, that her

attendance for the whole of the hearing was a reminder of the substantial body of evidence before his Honour

showing community opposition to the appellant�s proposal. It was a reminder of that evidence, but not

evidence in itself.


21

[24] The submission as to his Honour�s making an error of law in taking into account the petition is similarly

without merit in our view. Reliance for that proposition was placed upon the decision of Mylne D.C.J. sitting

in the Local Government Court at Cairns in Allen v. Atherton Shire Council (1977) 4 Q.L. 266. In that case

there were two appeals by objectors against the proposal of the respondent Council to use a recreation reserve

for the �development� of a library. There was tendered in evidence a petition signed by a large number of

people seeking a poll on whether the open space of the recreation reserve should be used for the building of a

library. It was argued that until such a poll was held there was good reason not to give a decision that might

result in frustrating the opinion of the electors expressed in the poll. The poll was sought under s. 53 of the

Local Government Act 1936-1977 which provided that a local authority might at any time, and should when so

directed by the relevant minister, �take a poll� of electors on certain specified questions. The respondent had

not decided, and the minister had not directed, that such a poll be held. Mylne D.C.J. concluded that the

decision of the court should not be delayed until a poll were held, adding, �[t]he petition is not a factor to be

considered in determining the merits of the appeal if the Local Government Act prescribes the method whereby

objectors to a proposed development may be heard� (p. 272). That case is clearly distinguishable from the

present case in that what was in question in that case was a petition to put machinery in motion to ascertain

the views of electors, whereas in this case the petition was a clear expression of opinion by those who signed it

on an issue which was before the Planning and Environment Court.

[25] The petition is headed �To Object to the Grant of Application for General Liquor License made by

Arksmead Pty Ltd ATF Marshall Trust, by its Nominee Anthony Whitcroft�, indicating that the people who

signed it did so in relation to an application under the Liquor Act. But the grounds of objection set out in the

petition show that it is relevant to the amenity issue before his Honour. The grounds were these:

1. Undue offence, annoyance, disturbance and inconvenience to persons

[a] who reside or work or do business in the locality

[b] travelling to and from church and school in the locality

2. If the application is granted the amenity, quiet or good order of the locality concerned would be lessened.

The coincidence of issues before the liquor licensing authorities and the Planning and Environment Court

renders the petition relevant and admissible before the latter in our view. There is always a question of weight

to be considered when reliance is placed upon a petition, and, in this case, the fact that the petition was signed

in connexion with an application for a liquor licence is perhaps a further matter to be considered when

assessing its weight. Its relevance to the issues before his Honour, however, justifies his Honour�s reception of

it in evidence and his consideration of it in reaching his decision. We see no error of law in his having done so.

[26] It was argued on behalf of the appellant that the third error of law his Honour made was in concluding

that it was open to him to consider only the plan of the appellant�s proposal, which was exhibit 20 (drawing

SK2E). Exhibit 20 was the appellant�s preferred plan at the hearing, but there were two other plans in

evidence before his Honour: exhibit 1 (drawing SK2A), the plan that was included in the application for town

planning consent and available for inspection by any potential objector, and exhibit 2 (drawing SK2D) which

was the only plan of the proposed development the first respondent supported. At the hearing it became

obvious that the appellant would accept the plan supported by the first respondent, although exhibit 20

remained its first preference. There was a difference between exhibits 1 and 2 which caused an issue to arise

before his Honour. There was, however, no difference of any moment between exhibits 1 and 20.


22

[27] The Local Government (Planning and Environment) Act did not expressly confer on the Planning and

Environment Court power to approve a proposed development which was different from that which

accompanied the initial application to the local authority. This Court held, however, in Ecovale Pty Ltd v.

Gold Coast City Council [1999] 2 Qd. R. 35, that the Planning and Environment Court had a limited power

to do so, and that the limits of that power were to be derived by implication � or analogy - from s. 4.15 of the

Local Government (Planning and Environment) Act.

[28] Section 4.15 provides for modification of certain applications and approvals. Subsection (1)(a) provides

that an application may be made to a local government seeking modification of an application to which the

section applies, and subsection (1A) provides that the section applies to an application for town planning

consent under s. 4.12(1), as this application was. Subsection (2) imposes restrictions on the power of a local

government to approve an application to modify made under subsection (1). Two of those restrictions were

relevant in this case. A local government is not to approve an application to modify where:

(a) in its opinion the modification is not of a minor nature;

(b) in its opinion the modification would adversely affect any person to a degree which would, if the

circumstances allowed, cause that person to make an objection;

His Honour found that this was not a case to which (b) applied, but found that the modification in question

was not of a minor nature. It was argued on behalf of the appellant that that finding proceeded from an error

of law. The modification was the removal of access at the north-western corner of the land. Bearing in mind

the conclusions we have reached on the other points raised by the applicant in this appeal, we conclude that it

is not necessary to decide this point. That is because his Honour�s conclusions concerning the detrimental

effect on amenity and on need were based on broader considerations than that of whether or not there was

access at the north-western corner of the land. But in any event his Honour�s conclusion on this point involved

no error of law.

[29] In reaching the conclusion that the modification was not of a minor nature his Honour was guided � as he

was bound to be � by subsection (3), which is as follows:

(3) For the purposes of subsection (2), a proposed modification is of a minor nature if�

(a) the proposed use to be made of the land the subject of the modification is not varied by the addition of

different uses;

(b) the gross floor area of buildings or proposed buildings on the site is to be increased by less than 5%;

(c) the number of storeys above ground level to be contained in any building or proposed building or part

thereof on the site is not to be increased;

(d) the locations of the proposed ingress to or egress from the site are not to be substantially altered;

(e) any altered ingress to or egress from the site is to be to or from the roads�

(i) approved by the local government in dealing with the relevant application; or

(ii) specified in the relevant application;

(f) the amenity or the likely future amenity of the locality would not, in the opinion of the local government, be

adversely affected by the proposed modification. His Honour explained his conclusion in this way: Here, the

ingress might involve from between 4% to 10% of the total generated traffic to the new development. The

Council sees important differences between access at the north-west corner, compared to no such access.

Bearing in mind the standard already set in subsection 3(d), it should be concluded that this modification


23

is not of a minor nature. It follows that the Council�s preferred position is untenable � drawing number SK2D

cannot form the basis of an approval. It is therefore necessary to consider Arksmead�s preferred position,

contained in drawing SK2E � Exhibit 20.

[30] It is inherent in his Honour�s reasoning that the pertinent provision was subsection (3)(d): that since the

locations of the proposed ingress to the site were not such as not to be substantially altered, the modification

of exhibit 1 made in exhibit 2 was not of a minor nature. The removal of one of two places of ingress to a site is

clearly enough capable of being found to be an alteration which does not fall into the not-substantial category,

so we detect no error of law in his Honour�s doing so.

[31] It was also argued on behalf of the appellant that in failing to consider subsection (3)(f), as he was urged

to do on behalf of the appellant, his Honour fell into error. We are not persuaded that that was an error.

Subsection (3)(d) is the relevant provision in setting a standard to be applied to alterations of the locations of

the proposed ingress to a site, just as subsection (3)(b) sets a standard for alterations of gross floor area of

buildings or proposed buildings on a site, and (3)(c) sets a standard for alterations of the number of storeys

above ground level to be contained in any building or proposed building or part of such a building on a site. It

follows that the other provisions of subsection (3) were not germane to his Honour�s deliberations. If

subsection 3(f) were to have been considered relevant, its relevance would have been so slight when compared

with subsection 3(d) as to justify his Honour�s disregarding it. We therefore conclude that the appellant has

failed on its third point.

[32] The appeal should therefore be dismissed and the appellant ordered to pay the second respondents� costs

of the appeal.

9. From time to time the High Court decision in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980)

145 CLR 485 is analysed by the Planning and Environment Court and the Court of Appeal. The most recent

example of that is in Brisbane City Council v Cunningham (2001) 115 LGERA 326. The concept of a piecemeal

application was developed by the High Court. However, in Brisbane City Council v Cunningham the facts of that

case lead the Court of Appeal to come to the conclusion there was no piecemeal application. Two applications were

made. One was for code assessment and the second was for impact assessment. They were made as separate

applications dealing with different parcels of land but there was a common area of car park for each of the two

applications. Mr Cunningham had objected to the advertised application by Eastern Suburbs Leagues Club Ltd said

that it was a piecemeal application. The Court of Appeal disagreed. Relevant comments by Justice Thomas are as

follows:-

[2] THOMAS JA: The question in this appeal is whether a judge in the Planning and Environment Court

erred in holding that the so-called "rule against piecemeal applications" in Pioneer Concrete (Qld) Pty Ltd v

Brisbane City Council applied to two applications made by Eastern Suburbs Leagues Club Limited ("the

club"). Leave to appeal was granted by the court on 8 September 2000.

[3] The club made two applications. That which related to redevelopment of an existing pool area may

conveniently be referred to as "the pool application", and that which related to redevelopment of the club as

"the club application". The pool application has been approved and the club application has not yet been

determined. The respondent, Mr Cunningham, commenced proceedings in the Planning and Environment

Court seeking a declaration that the Council's approval of the pool development application was "ultra vires


24

the town plan". His application was based upon a claim that there should have first been an Impact

Assessment, and that the application should not have been approved because of adverse impact on the

amenity of adjoining residential sites. In particular, he objected to the fact that carparking facilities were

provided close to his rear boundary.

[4] There is no legal basis for those submissions. The pool application sought the intensification of an existing

use as of right and was a "permitted development" of the type prescribed in column 2 of the table contained in

cl 11.3.2 of the City of Brisbane Town Plan. The power of the Council in respect of such applications, when

more than minor building work was involved (as here), was the imposition of appropriate conditions.

However, during the hearing the learned judge himself raised the question whether the club's concurrent

application in respect of the club redevelopment should have been made and advertised as part of the one

development. Despite strenuous submissions to the contrary, his Honour expressed the view that both

applications were "part of a single grandiose proposal" and that he had "the strong impression of an

integrated overall plan". His Honour upheld the "piecemeal applications" point and proceeded to declare the

Council's approval of the pool application ultra vires.

[5] I have difficulty in finding evidence to justify his Honour's view that there was a single grandiose proposal.

The club's premises, which include a ground where football matches are played and a club house, are leased

from the Council. The club's history, which goes back some 34 years, reveals progressive development of

the club house. The club's lease is over part only of a large parcel of land extending south from Norman Creek

to a residential area close to Old Cleveland Road. The Council's land (Lot 1) includes the Club, an adjoining

Bowls Club and the Langlands Park Swimming Pool area. The pool area was formerly leased to another

lessee, but in 1996 the club developed an interest in the site. In 1998, as the result of a tender, the Club

obtained a one year lease from July 1999. This was apparently to facilitate redevelopment proposals which, if

approved by the Council, would result in a 30 year lease to the club. The proposed lease requires the club to

keep the redeveloped swimming pool complex open for public use on payment of prescribed fees. It is also

made subject to various other conditions which are aimed to ensure operation as required by the Council.

[6] The club's initial proposal did not seek the provision of any carparking associated with the pool complex.

It was the club's desire to obtain some carparking rights to the unused area to the south of the swimming pool

for its club redevelopment, and if it was approved, to use that area not only for club purposes but to

accommodate parking for the pool redevelopment. That area may conveniently be referred to as "the carpark

area". However, the Council indicated that the provision of a carpark area would be required as a condition

of approval of the proposed pool redevelopment. In the event, although the applications are primarily in

respect of different areas, both applications were prepared and lodged so as to include the

carpark area in the land the subject of the application.

[7] The club redevelopment application is for the adding of a food court, gaming space and additional bar

areas. As earlier indicated, it also requests approval be given to the use of the carpark area south of the

swimming pool for club purposes. The evidence shows that the club does not intend to use the carpark which

has been approved as part of the pool redevelopment for any purpose unassociated with pool redevelopment

unless and until the Council gives approval for such use. Indeed, it could not lawfully do so.

[8] Any rational analysis of the evidence shows that the club's desire for eventual double usage of part of the

pool carpark has never been concealed. Whether or not one characterises separate projects which overlap in

one respect only as a grandiose scheme does not in the end matter. There is one point of overlap, and that is


25

the circumstance upon which it must be decided whether the Pioneer case mandates a single application in

respect of both matters.

[9] The respective applications are for different uses and are subject to entirely different streams of

advertisement, objection and determination under the City of Brisbane Town Plan. The use the subject of the

swimming pool application was "outdoor sport and recreation". The use the subject of the club application

was that of "licensed club". The pool application is described as a "code assessable" application, and as

earlier indicated could not be refused by the Council, although conditions could be and were imposed.

Members of the public have no rights of appeal against the approval of such an application. The club

application is described as an "impact assessable" application, that is to say it requires an Impact Assessment

Study to be provided. Public notification is necessary, and members of the public have rights of objection and

appeal.

[10] The pool application had of course already been approved by the Council subject to prescribed

conditions prior to the commencement of Mr Cunningham's proceedings. The club application had been

advertised and had attracted objections, including one from Mr Cunningham. As earlier noted, it has not yet

been determined.

[11] The essential requirement of the decision in Pioneer Concrete is that the proposed use "must be stated in

appropriate detail in one application and all the land involved in the use must be the subject of the

application". There is no rule prohibiting the making of more than one application in respect of the one piece

of land or part of a parcel of land. The Pioneer principle required that each application for a use for a

particular purpose be for the whole of the use (including incidental and necessarily associated uses) and for

the whole of the land devoted to that use. It did not require that two separate and distinct uses be combined in

one application.

[12] Even on the learned judge's view that both applications proceeded from the one club as part of an

integrated overall plan, it is still necessary to examine the uses in question and the extent to which each

application identifies the land over which such use is sought. Pioneer is concerned with the sufficiency of an

application by reference to its subject matter (the use and the land on which that use and ancillary uses are

intended). It does not forbid the inclusion in one application of multiple uses for multiple purposes. Whilst in

certain circumstances it prohibits what are conveniently referred to as "piecemeal applications", it does not

place an embargo upon staged development except in the circumstances stated.

"All this, of course, places no obstacle in the way of applications where consent becomes necessary for the

extension of an existing use to adjoining land or where an applicant for consent to a proposed use

contemplates that there will later be an extension of that use. It is only where land is proposed to be used for

the one purpose at the one time that consent for its use must be applied for in the one application."

[13] A similar attempt to read too much into Pioneer failed in Stubberfield v Redland Shire Council. The court

observed:

"There are no significant parallels between this case and what was decided in Pioneer. Here, the subdivisional

application related to the entirety of Paradise Grove's land. While it is correct that that application did not

relate to the second phase of what Paradise Grove proposed, it dealt comprehensively with the first phase

which was relevantly comprehensive and self-contained. There was no need for the local authority to consider

matters which were involved in the combined application and the outcome of the combined application

was not determined or influenced by a favourable decision on the subdivisional application."


26

[14] The same description (comprehensive and self-contained) properly applies to the present applications.

[15] If one applies the "critical integers" described by Stephen J in Pioneer Concrete, namely, land and use, it

would seem that his Honour in the present case regarded the carparking area (ie the land) and the

circumstance that a later decision could be made which would allow it to be used for another purpose as

sufficient to render the applications invalid. However, as Stephen J pointed out, "the land is merely the

passive object which is being used; the active integer, use, will determine its extent".

[16] If there is some long term desire on the part of the club to solve its parking problems through usage of

this particular carpark, it will be necessary for it to satisfy the Council that this is an appropriate use in

relation to the club application. The application for that particular use might be refused or it might be made

subject to conditions. It is not as if the making of these two applications has deprived Mr Cunningham of the

opportunity of objecting to such a usage. The club exposed its intention and Mr Cunningham has in fact

objected. If he or any other objector does not agree with the Council's decision he may appeal. The approval

of the carparking area for carparking for pool patrons, which is ancillary to the pool use, in no way makes it

difficult for the Council to forbid use of that area by club patrons, ancillary to the club use, if the Council is

minded not to approve the use of that carparking area for club purposes. In my view the club has not breached

any town planning requirement and the making of two separate applications in the circumstances of the

present case does not fall within any principle expressed in Pioneer Concrete.

[17] In the present case the essential separateness of the applications is emphasised by the two regimes that

are in place for dealing with them. Whilst it would have been theoretically possible for both applications to be

combined, separate parts of that application would then have had to have been separately advertised and

separately dealt with. In substance the pool application would have to have been granted, and the club

application would have to be decided after taking due account of objections. I am at a loss to know what Mr

Cunningham has lost by reason of the bringing by the club of the two applications in the manner chosen.

[18] In my view his Honour erred in purporting to apply the Pioneer Concrete principle, and in declaring that

the Council's approval of the swimming pool application was ultra vires. The appeal must be allowed.

Costs

[19] Before the application was heard in the Planning and Environment Court the club's solicitors wrote to

Mr Cunningham informing him of their view that the application was without foundation, and indicating that

costs would be claimed if he persisted. Section 4.1.23(2)(a) of the Integrated Planning Act 1997 strictly limits

the occasions when costs may be ordered against a party in that court. In the present case it was submitted

that the application was "frivolous or vexatious". However, Mr Cunningham's concerns are at least

understandable, and despite their lack of legal merit I am not prepared to hold that his application was an

abuse of process or frivolous or vexatious. I would therefore not accede to the making of an order that he pay

the costs of the proceedings below.

[20] So far as the appeal is concerned, each appellant is entitled to its costs. However, as the decision was

given upon a point initiated entirely by the learned judge, the unsuccessful respondent should have an Appeal

Costs Fund certificate. 7 Integrated Planning Act 1997 (Qld), s 4.1.23(2)(b).

Orders

[21] 1. In appeal No 6745 of 2000 the appeal is allowed; the order of the Planning and Environment Court

dated 2 August 2000 is amended by setting aside the declaration in paragraph 2 thereof and replacing it with

an order that the application be dismissed.


27

2. In appeal No 6784 of 2000 the appeal is allowed; the order of the Planning and Environment Court dated 2

August 2000 is amended by setting aside the declaration in paragraph 2 thereof and replacing it with an order

that the application be dismissed.

3. In each appeal the respondent, Mr Cunningham, is ordered to pay the costs of the appeal including the

application for leave to appeal, and the respondent is granted an indemnity certificate in respect of each

appeal.

10. From time to time the conditions power is debated as to its scope. Care needs to be taken by Local Government in

imposing conditions. They are not a matter of standard application. Each condition needs to be assessed against the

facts and circumstances of the particular Development Application. The test for a lawful condition has changed

with the legislation. Under the Local Government Act 1936 a condition was unlawful unless it was relevant and

reasonably required. That was broken up into two tests in the Local Government (Planning and Environment)

Act 1990 with the use of the word or. While the word or has continued to be used in the Integrated Planning Act

1997 the relevance test has had an additional component added to it. The current conditions power is set out in

Section 3.5.30 of the Integrated Planning Act 1997. For a relevant condition to be lawful it must not be an

unreasonable imposition on the development or the use of premises as a consequence of the development. The

second test is that the condition must be reasonably required in respect of the development or the use of premises as

a consequence of the development.

11. The test of relevance has been debated on a number of occasions and most recently by the Court of Appeal in

Maroochy Shire Council v Wise (1998) 100 LGERA 311. This decision was under the Local Government

(Planning and Environment) Act 1990 but still has some applicability because of the current test under the

Integrated Planning Act 1997 subject to the relevant condition not being an unreasonable imposition on the

development. The Court of Appeal went back to the High Court decision in Lloyd v Robinson.

Selected Planning and Environment Court Decisions

12. It is appropriate to look at decisions with respect to appeals generally, the conditions test, the declarations power

and costs.

13. In Power v Sarina Shire Council [2000] QPELR 145 Judge Wall QC examined the good quality agricultural land

(sugar cane) as part of an application to rezone the land to the Rural Residential Zone and for a subdivision

approval. The Respondent had refused the application. Some relevant comments of the Judge are as follows:-

...

State Planning Policy 1/92

This policy is Exhibit 5A. The purpose of the policy is to conserve good quality agricultural land which is

described as the "best and most versatile farming land". Such land is a "valuable resource" and "should not be

built on unless there is an overriding need for the development in terms of public benefit and no other site is

suitable for the particular purpose". The land should be "productive" or capable of being productive, either by

itself or amalgamated with other good quality agricultural land. Good quality agricultural land should be


28

preserved regardless of the effect of market fluctuations on its viability. The amalgamation of small holdings

which are not agriculturally viable should be encouraged if that would enhance farm viability. Rural

residential development should occur in such a way that avoids conflict with farming operations and does not

inhibit farming practice. The policy provides that the Planning Guidelines for the Identification of Good

Quality Agricultural Land (Exhibit 5B) define "good quality agricultural land". I shall refer to these as the

Planning Guidelines.

...

A number of things can be said about the Suitability Guidelines:

* socio-economic factors in general terms are relevant to land suitability classification

* subjectivity is involved in the classification of limitations and assignment of critical values to limitations

* subjective waiting of limitations is involved in the combination of limitation of sub-classes

* information relating to all attributes of the limitations must be collected.

* discussions must be held with extension officers, agronomists, economists and farmers so that the relevant

diagnostic attributes for each limitation can be selected.

* the reliability of the surveyor's validation of the diagnostic attributes and the critical values chosen to

establish limitation sub-classes will depend on the experience of the surveyor in land evaluation studies.

* in the validation of diagnostic attributes and their critical values information should be obtained from

farmers experienced in sugar cane growing who have local knowledge of such matters.

* profitability or technological capacity is to be assessed.

* the preliminary land suitability classification assigned by the surveyor should be tested in the field with local

farmers, research and extension officers, following which revisions may be required.

* economic considerations in general terms are relevant to the assessment process as is local input from

sufficiently qualified and experienced local farmers.

According to the Plane Creek Sugar Cane Land Suitability Study, the western third of Lot 7 was assessed as

class 5 for sugar-cane and the remainder as class 3. ...

Witnesses

Detailed assessment of the agricultural quality of the subject land was carried out by the various experts but

with varying results. [His Honour then examined at length that evidence]

Need

This issue is relevant once the conclusion is reached that the land is not good quality agricultural land. It is

raised by the Planning Scheme and was dealt with in the evidence of Mr Michael McGovern a valuer and real

property consultant and Mrs Veronica Schilliing-Hauskrecht, the Respondent's consulting town planner. I

prefer the evidence of Mr McGovern. Whilst he is not currently working as a valuer or real estate agent he

does, in my view, have more relevant local experience and, I think, intuitive judgment than Mrs Schilling-

Hauskrecht. I accept his opinions as contained in his report, exhibit 15A and in his evidence. In the relevant

area the number of vacant rural residential sites has decreased from about 20 at the time he wrote his report,

August 1998, to 11-13 at present. I say "relevant area" because in my opinion it is legitimate in considering

need to look at the Alligator Creek area, where the subject land is situated, rather than the broader and more

global shire approach which I thought appeared to be favoured by Mrs Schilling-Hauskrecht, certainly in her

report, Exhibit 9D, I accept that there is a need in the particular area for this type of development whilst

recognising that on the broader approach the evidence may not be as persuasive. Mrs Schilling-Hauskrecht


29

did agree that the Respondent's draft policy, Exhibit 9D, page 21, did recognise particular locality need. In

evidence she said she expected most issues connected with the subject application to be resolved by

appropriate conditions once the issues of good quality agricultural land and need were determined. She said

locality need should be considered in a whole of shire context, but agreed with Mr McGovern's figures. She

said that if the land was not good quality agricultural land the Council would probably accept that it could be

developed with appropriate buffering from adjoining uses, or at least she wouldn't have recommended against

it. I think that is a proper approach to take. Notwithstanding the fact that the adjoining subdivision was

created before the current planning scheme came into force its presence cannot be ignored; it is a fact and it is

of relevance in relation to this application. Mr Hughes conceded, correctly in my view, that the issue of need

was to be approached by reference to the community interest in such development as opposed to marketability

from the developers standpoint. I also accept Mr McGovern in relation to the fact that realistically a

development such as is proposed by the Appellant will not conflict with the surrounding farming and tramline

activities. In my view, "exceptional circumstances" for the purposes of the planning scheme exist where land

zoned rural is not good quality agricultural land and is not suitable for sustained or commercial agricultural

purposes, including horticulture, where there is an adjoining rural residential subdivision (notwithstanding

that it was created before the current planning scheme) and another very close by, where there is a need for

this type of development and where the other requirements for rezoning and subdivision to allow a rural

residential development are satisfied which is the case here.

Result

For these reasons the Appellant has established that his application should be approved. The appeal will

therefore be allowed and the application approved subject to conditions. I adjourn the further hearing of the

appeal to a date to be fixed to allow the parties to agree upon and submit a schedule of conditions.

14. In Powell v Bowen Shire Council [2000] QPELR 113 Judge Pack was dealing with a submitter’s appeal against

the Councils approval for a material change of use for a multiple dwelling under a superseded Planning Scheme.

Issues of visual impact, environmental issues and need were examined. In the course of the Reasons for Judgment

Judge Pack with respect to visual impact and views, environmental grounds and the task of the Council and the

Court, said:-

Mr Chirnside is an experienced landscape planner who gave evidence and who has provided a report which is

Exhibit 3. As I have mentioned, his report provides particularity with respect to the removal and relocation of

trees and a perspective of the effect of this by use of a transparency which forms part of the Exhibit, along with

photographs and plans. Because some palm trees are already grown to the height of the proposed building the

impact of the building will be reduced.

It is proposed to transplant coconut palms and to plant other plants to provide a significant interface of foliage

acknowledging that the developer would have to work hard work at providing a dense interface of smaller

palms underneath larger ones to ensure that the Appellant�s privacy was not invaded from lower floor levels.

He indicated that this could be achieved without difficulty. Having regard to the presence of eaves over


30

windows, together with present and proposed plantings I have concluded the prospect of Mr Powell�s privacy

being invaded by occupants at higher levels is not significant.

��

The environmental grounds of appeal go on to suggest that the proposed development files to restrict

development in an area �known to be environmentally sensitive� and does not �address adverse

environmental impacts�.

With respect to beach protection, Mr Holbrook points firstly to the fact that the proposed development is to be

constructed within the bounds of the existing development. No works seaward of the existing development are

required.

Mr Holbrook addressed the issue of the locality�s stability noting that the area was vulnerable to wave over

topping and beach erosion during storm events. He referred to the Barrier Reef absorbing significant wave

energy and the rock outcrops of Rose Bay effectively providing a groin stabilising the beach and on that basis,

concluded that the beach was reasonably protected from the erosive force of wave energy. He said that this

view was supported by the existing mature trees and vegetation seaward of the subject site.

He point out that further vegetation plantings would further enhance stability.

Mr Holbrook�s report, after considering relevant legislation addresses management issues which include

water quality management, erosion and sediment control, noise abatement, environment issues, beach

protection, air quality and lighting and concludes that there is no evidence to suggest that the site provides

viable native habitat or contributes to the ecological integrity of the terrestrial surrounds. He referred

specifically to the need for erosion and sediment control and the need to control light over-spill to avoid

adverse impact on nocturnal terrestrial fauna and hatchling turtles. These matters have been addressed in the

management plan.

��

My task is not to apply particular weight to the projected wishes of individuals, questions of amenity or with

respect to the proposal generally. The task of Council and of the Court was always and remains one of

weighing the proposal against the planning scheme.

15. In Financial Insurance Group Services Pty Ltd v Townsville City Council [2001] QPELR 88 Judge Wall QC

was looking at an appeal against the Respondent’s decision to refuse a material change of use from Residential 2 to

Professional Office. The Council’s Transitional Planning Scheme had a number of provisions which guided the

decision. In the Reasons for Judgment Judge Wall said:-

....


31

The subject site does not have a �frontage� to Ross River Road, as that term is defined in the administrative

definitions of the scheme. In this sense, its frontage is to Gulliver Street, although in one sense it does face or

front the intersection including Ross River Road. I agree that one should not adopt an inflexible rather a

practical commonsense approach to the Strategic Plan objectives. Approaching the matter that way, I think

that the general provisions relied upon by the appellant are qualified by the specific provisions referred to by

the respondent and that the present application should be determined by reference to the latter. In general

terms, the Strategic Plan aims to �promote the establishment of developments which will add to the diversity of

opportunities and add to the city's economic base� (Aim 4). In support of this aim is a strategy to the effect

that �the needs of a wide variety of professional service activities and the convenient availability of these

services and facilities to the general public will be facilitated by providing a wide range of locational

opportunities for minor professional services and home occupations� (section 2.7.5(c)). In dealing with the

preferred dominant residential land use area, the Strategic Plan provides that �in the case of some developed

areas, limited small intrusions of compatible nonresidential uses exist and will be allowable in some

circumstances� (section 2.15.1). The appellant submits that the present application is such a circumstance. It

is misleading though to treat the building on the land as an existing compatible non-residential use because

the nonresidential use, namely a professional office, is occurring unlawfully. Objectives 1 and 5 of the

Strategic Plan and paragraphs (h) and (a)(i) respectively of the implementation criteria for each objective are

the particular provisions relied upon by the parties, the appellant placing emphasis on the former and the

respondent on the latter.

These are in the following terms:

�OBJECTIVE 1

To promote a high standard of amenity.

Implementation

(h) The residential amenity of some areas already suffers from traffic noise from an adjacent major road.

While the land use designation is residential some non-residential uses may be allowed. The resulting

structures should be so placed as to screen the houses to the rear.�

�OBJECTIVE 5

To most efficiently utilise the residential area by a selective allowance of non-residential uses which do not

adversely affect amenity.

Implementation

(a) The Council may allow a professional office or a medical centre on certain land in the City zoned

Residential. The Council will favourably consider this use in an existing building or in a new building

designed and constructed to maintain a 'domestic' scale and appearance and where the amenity of an area will

not be adversely affected. This land zoned Residential is as follows:

(i) land having a frontage to Ross River Road between Bowen Road, Mundingburra, and Lindeman

Avenue, Cranbrook.� In my view, Objective 5(a) governs the extent to which a professional office or a

medical centre as �limited small intrusions of compatible non-residential uses� can occur in a

residential area and the extent to which �some non-residential uses (being those particular non-

residential developments) may be allowed� in such an area. �Frontage�, for the purposes of

Objective 5(a)(i), should bear the meaning assigned to it in the definition section already referred to.

Certain developments are generally permissible in the Residential 2 zone where they are �located on


32

land fronting a principal road or otherwise where they accord with the Residential Objectives of the

Strategic Plan� (section 6.4). When read with section 2.15.1 of the Strategic Plan this was said to

encompass the present application, but in my view it is qualified by column 3 of the Table of

Development for the Residential 2 zone (section 6.5.1), which lists as a permissible development a

�professional office - in accordance with the Strategic Plan�. This in turn takes one back to Objective

5(a)(i). For present purposes, paragraph (a)(i) is incorporated in the Scheme provisions and, to that

extent, assumes more importance than a mere objective related provision. To fall within column 3, the

subject site would have to front Ross River Road (clearly a principal road) in the sense of having a

frontage to it, that is having a boundary or part of a boundary coinciding with any continuous part of

the limits of Ross River Road, and this site does not. Professional offices on this site are therefore not

a permissible development in the Residential 2 zone, but are prohibited. In my view, the Strategic

Plan does not in fact envisage a professional office in a residential area in all cases where the

residential amenity of the area suffers from traffic noise from an adjacent major road, but only in

those cases encompassed by Objective 5(a). A professional office or a medical centre is a permissible

development on land zoned Residential 2 and 3, provided the land has a frontage to the roads

mentioned in Objective 5(a). In each case, the Tables of Development require that the development be

�in accordance with the Strategic Plan� and Objective 5(a) is the relevant provision of the Strategic

Plan. The same is the case in the Residential 1 zone, but only for a professional office. So far as the

Residential 2 zone is concerned other development is permissible on such residentially zoned land �

as envisaged by Objective 1(h) and section 6.4 of the Scheme - in a broader range of locations, for

example, a child care centre and a nursing home, where the residential amenity already suffers from

traffic noise from an adjacent major road and the structures are placed so as to screen the houses to

the rear, and an arts and crafts centre, a motel, a surgery and a veterinary clinic on a principal road

(not only those roads mentioned in Objective 5(a)), probably where the residential amenity already

suffers from traffic noise from that adjacent road and provided the structures are placed so as to

screen the houses to the rear. The locational scope for a professional office is not as wide as for these

types of developments; it is limited by Objective 5(a). For present purposes, land in a Residential

zone having a frontage to Ross River Road between Bowen Road and Lindeman Avenue would be

land fronting a principal road. The subject site does front a principal road - Gulliver Street - and it

does suffer from traffic noise from a major road - Ross River Road - which I am prepared to accept is

an adjacent major road, but it does not have a �frontage� to Ross River Road as that term is defined

in the Planning Scheme. For the purposes of Objective 5(a), the �certain land...zoned Residential� is

the land described in subparagraphs (i) to (viii). In the case of such land, the council �may�

generally allow a professional office. The prospects of permission being granted are enhanced if the

professional office is intended to be located �in an existing building or in a new building designed

and constructed to maintain a 'domestic' scale and appearance and where the amenity of the area will

not be adversely affected�. In such a case the council will �favourably consider� the application. The

fact that the professional office proposed in the present case is intended to be located in the existing

building on the site is not enough to assistant the appellant, because the site does not have a frontage

to Ross River Road. Had it such a frontage, the application would have been �favourably

considered� and, according to the respondent's Director of Planning Services, Mr Gopal, probably


33

granted. I appreciate that the subject land is effectively located on the boundary of and adjoins a

property which has a frontage to Ross River Road and, in this sense, is very close to a �permissible�

area, but in the end result and from a planning point of view that in itself cannot amount to a

sufficient reason to elevate a prohibited proposal to a permissible proposal. �Frontage� is defined in

such a way that it is allotment neutral in the sense that a corner allotment can front both roads and it

is irrelevant that a building constructed on the allotment may in fact �front� only one of them.

�Fronting a principal road� must logically bear the same meaning, but, in the circumstances of this

case, unfortunately that cannot assist the appellant. Adopting what has been described as a

�commonsense approach� and a �sensible practical approach� to the interpretation of the Strategic

Plan provisions, the fact that the present proposal conflicts with the Strategic Plan provisions which I

have referred to is a conflict which is �plainly identified� (see Fitzgibbons Hotel Pty Ltd & Ors v.

Logan City Council (1997) QPELR 208 at 212 and Harburg Investments Pty Ltd v. Brisbane City

Council & Anor, unreported, Planning & Environment Court, Brisbane, 5 May 2000, Skoien DCJ).

This result is of course an unfortunate one for the appellant, but I cannot agree with Mr Needham

that it leads to a �ridiculous situation�. It is a situation likely to be faced by the owner of any

property situated on a zonal boundary under the present transitional Planning Scheme. The intention

of the Residential zone in the present case is that professional offices can, with permission, be located

in such a zone on land having a frontage to Ross River Road. Elsewhere in the zone, they are

prohibited. Though the subject site does not quite have a frontage to Ross River Road, it nearly does

and it is for this reason and its related effect on residential amenity in the sense mentioned in

Objective 1(h) that the appellant also says there are in fact sufficient planning grounds to justify

approving the application despite its conflict with the Strategic Plan (see the Integrated Planning Act,

section 6.1.30, and the Local Government (Planning & Environment) Act, section 4.4(5A)). It is also

submitted that there is a need for a professional office in this location in the sense referred to in

section 4.4(3)(b) of the Local Government (Planning & Environment) Act. Generally speaking and

subject to the issue of need, Mr Gopal agreed that had part of the boundary of the subject site fronted

Ross River Road, the traffic considerations which occupied the balance of the hearing by themselves

probably would not have been sufficient to justify refusal of the proposal. The proposal conflicts with

the Strategic Plan in the sense that it is, according to column 3, a prohibited development in the zone

where it is situated. Is there, nevertheless, a need for it? I do not think there is. In my view, there is

ample other available land in the relevant part of Ross River Road generally and on the market (see

Exhibits 12, 13 and 14). I am unable to conclude that the public need requires or that there is a public

need for approval of this application in circumstances where other available land is conveniently

located in the near or immediate vicinity and exists in sufficient quantity both generally and

particularly available at the present time. This is the case even if one limits consideration to a �home

based professional office�, to use Mr Needham's words, and I am not sure in any event that it is

correct to confine a consideration of need in that way. The Planning Scheme does not distinguish

between different types of professional offices, but, having said that, I recognise that each case has to

be considered by reference to its particular facts and circumstances. In this sense, I am not persuaded

that there is a need for more land in this area which can be used for a home based professional office.

I agree with Mr Haydon that the starting point is the fact that all the land on Ross River Road in the


34

relevant area is potentially available for use as professional offices and that Exhibits 12, 13 and 14

and the evidence in relation to them indicate the land available at the present time. Looked at this

way, no need exists for additional land to be designated for use as professional offices. Mr Dance, in

paragraph 3 of his report, Exhibit 1, mentions that: �Housing along Ross River Road has

progressively been turned over to professional offices or medical centres/surgeries during the life of

the Planning Scheme.� I do not agree with Mr Dance (Exhibit 1, page 16) that, in the circumstances

of this case, the �need issue is tempered by the effect of the Integrated Planning Act� in the sense that

approval of the application would not require a rezoning. Need is an issue which requires

consideration in a substantive way regardless of the technical effect which approval would produce

on the Planning Scheme. An assessment of �alternative and available sites� (to use Mr Dance's

words) leads me to the conclusion that no need has been established sufficient to warrant approval of

the present application. In those circumstances, there are not sufficient planning grounds to justify

approval of the application despite its conflict with the Strategic Plan. The appeal will therefore be

dismissed.

16. The conditions power has been looked at from time to time by the Planning and Environment Court. This analysis

is not meant to be exhaustive but to give some North Queensland examples. In Hewbridge Pty Ltd v Mackay

City Council [1999] QPELR 371 Judge Pack was looking at an appeal against conditions imposed on a

subdivision approval. In particular a drainage contribution was the condition being analysed. The relevant statutory

provisions was Section 5.3(f) and Section 6.1(1)(c) of the Local Government (Planning and Environment) Act

1990. The drainage condition sought a financial contribution per hectare calculated in accordance with a

Development Control Plan. After referring to Proctor v Brisbane City Council [1994] QPLR 309 and Maroochy

Shire Council v Wise [1999] QPELR 143 the Court went onto find:-

Whatever the level of discharge it does need to be accommodated in the Council�s drainage system. I think that

if there is some effect on drainage from the proposal, however slight, it is not something I should regard as

irrelevant. I think there is a relevant nexus between the development of the subject land and the drainage plan.

as I have indicated I think that once there is run-off from the land the Council was required to address

drainage and it is on that basis that I consider the condition to be relevant.

Accordingly, I dismiss the appeal against the imposition of condition (ix).

17. A stormwater drainage construction condition was examined as part of a subdivision approval by Judge Wall QC in

Delfin Property Group Pty Ltd v Thuringowa City Council [2000] QPELR 282. It was conceded by the

Respondent that the subdivisions add little, if any, measurable effect to the load in the Kern main drain and to the

flooding risks. The catchment for the Kern main drain at Charles Street is approximately 7 square kilometres. The

total area of these subdivisions is 8.78 hectards. The conditions tests were those under Section 3.5.30 of the

Integrated Planning Act 1997. Some relevant comments are from the Reasons for Judgment are as follows:-

The Council, in attempting to uphold the condition, relied primarily on historical reasons connected with the

development of the Willow Gardens Estate area in general. For the reasons referred to by Mr Gore QC for the


35

Appellant, those reasons do not in my view provide a sufficient nexus between the condition and the

subdivisions to make the condition lawful so far as it relates to the Charles Street to Dalrymple Road section

of the drain. The Appellant has agreed to the condition for the drain from Hervey Range Road to Charles

Street.

Mr Baulch SC argued that the Appellant apprehended and anticipated such a condition as a general

requirement connected to the ongoing development of the Willow Gardens Estate. The evidence does not in my

views go that far, but, even if it did, it would not make the condition lawful.

��.

Even if the condition could be said to be relevant, which I doubt because of its wide terms which required

construction rather than a contribution to construction costs but am prepared to accept, it would in the

circumstances amount in my view to an unreasonable imposition on the development more so when one also

has regard to the obligation of the Appellant to construct the main drain to its ultimate profile between Hervey

Range Road and Charles Street as a result of these subdivisions. The cost of complying with the condition, so

far as it relates to the section of the drain between Charles Street and Dalrymple Road, is put at about

$500,000.

18. In Barro Group Pty Ltd v Thuringowa City Council [1999] QPELR 312 Judge Wall QC was looking at the

conditions of a quarry application under Section 6.1(1)(c) of the Local Government (Planning and

Environment) Act 1990. It was an extension of an existing quarry. The conditions were amended.

19. The declarations power under Section 4.1.21 and the consequential orders under Section 4.1.22 of the Integrated

Planning Act 1997 mean that any person can review planning and environment decisions of Local Government.

The Judicial Review Act 1991 does not apply to conduct and decisions under the Integrated Planning Act 1997

(Section 5.8.4). The declarations power of the Planning and Environment Court is wide enough to consider those

matters which would have proceeded as a judicial review in the Supreme Court.

20. The declarations power is also useful in determining the scope of Development Application or whether it is

required to be made.

21. In Herberton Shire Council v Vance [2001] QPELR 2 Judge Wall QC was looking at an application for a

declaration and an injunction relating to the use by the Respondents of their land for activities of an industrial

nature notwithstanding the fact that the land was situated in the Rural Zone under the Planning Scheme. In the

Reasons for Judgment the following comments appear:-

��

I am satisfied that the respondents have had ample notice of the application. They have been served with it and

with the amended application. They have also been advised of the hearing date and they have chosen not to


36

appear to resist the orders sought by the applicant. In those circumstances, I considered it appropriate to hear

the application and if warranted, make orders of the nature sought, notwithstanding the absence of any

appearance by or on behalf of the Respondents

��..

Column 1 lists the development activities which can be carried on in the zone without the consent of the

council. These are, agricultural; animal husbandry; dairy; dwelling house; forestry of a particular nature;

home occupation; host farm rural stay of a particular nature; public park; public utility and trade storage

building. I am satisfied on the material before me that the activities carried out by the respondents, the subject

of complaint by the applicant, do not fall within any of these development categories. Column 2 lists the

development activities which may be undertaken only with the consent of the council. Even if it could be said

that the activities being carried out by the respondents come within the home industry activity, one of those

listed in column 2 (see also the definition of �home industry� on pages 13 and 14 of the planning scheme),

which I doubt, the fact is that the council has not given the respondents' consent to carry out such activities.

The extent to which the activities being carried out by the respondents interfere with the amenity of the

neighbourhood by reason of the omission of dust and fumes and noise, such as is referred to in the material,

lead me to the conclusion that the activities being carried out go beyond those encompassed by a home

industry. The activities which have been and still are being carried out on the land by the respondents are

referred to in the material. The commencement date for these activities is about early 1997. In the affidavit of

Gordon Kenneth Malcolm, Exhibit GKM1 contains three letters from neighbouring landowners complaining

about the respondents' activities on the land. These letters were written in June 1997 and variously refer to

those activities as a trucking and/or earthmoving business, involving numerous old trucks, trailers, trailers

loaded with junk, a grader and a bulldozer. Trucks and trailers were observed to come and go from the

property and a grader was observed working on the land. Mrs Canfield considered that the land was being

used a depot for trucks and earthmoving equipment which involved industrial noises and activity she described

as being like a junk yard. Mr and Mrs Horwood referred to the activities as being an earthmoving and truck

hauling business, a truck depot and repair yard, including a ramp used for off loading trailers and

earthmoving equipment, and a shed being constructed for the repair of numerous vehicles. They also referred

to activities involving banging and welding, all types of vehicles coming and going and repairs being carried

out on vehicles. They concluded, rightly so in my view, that some type of industrial business was being carried

out on the land. Mr and Mrs Braun in their letter referred to problems involving noise pollution, air pollution

and other activities pointing towards an industrial use of the land. They mentioned that trucks, low loaders,

graders, bobcats and cars were constantly moved in and out over the day and were intermittently revved and

tested. They also heard metal banging, clanking, hammering and the grinding of power drills. Fumes from

trucks, graders and heavy machinery also interfered with their amenity. They also observed the building of a

ramp for the unloading of heavy equipment and observed the big work shed under construction. These

activities led them to conclude that the respondents were gearing up to use the property, if not already using it,

as a truck and maintenance depot. Complaints received from neighbours of the subject land in the week

preceding Monday 23 February 1998 are summarised in the file note of Cameron Stanley, the applicant's

planning officer, Exhibit GKM7. These complaints satisfy me that the respondents were continuing to conduct


37

activities on the land of an industrial nature. The complaints included grinding noises; chainsaw; revving of

trucks; tractors and cars; 20 or so heavy vehicle movements a day; excessive noise and pollution and a

perceived use of the land as a contractor's yard for an industrial type activity. Mr Cameron attended on the

property on Monday 23 February 1998. Mrs Vance was there. She told Mr Stanley that a loader was

temporarily on the property the week before. Mr Stanley observed two cars, one dozer, one small truck, two

trailers and one tip truck on the property. Only the dozers and the trailers appeared to be in working order.

Mrs Vance admitted to him that the property was used for the servicing of vehicles used in their business. She

also said that the majority of the machinery was kept on the job site. They appeared to conduct some type of

earthmoving contracting business. On 9 March 1998, Mr Stanley met with Mrs Horwood, Mrs Braun and Mrs

Canfield in relation to the use that the respondents were putting the land to. Mr Stanley's file note of that

meeting is Exhibit GKM8. The neighbours said that the situation was not as bad as in September/October

1997, but nevertheless seemed to be intensifying somewhat. Mr Stanley concluded that the land was being used

as a contractor's yard. In his file note, he said that as at March 1998 the activity was minimal, but increased

on weekends and at times when equipment was not on a job site; that is in between jobs. Mr and Mrs Horwood

again wrote to the council on 22 March 1999, again complaining about the continued use of the property as a

contractor's depot and the use of a shed on the land as a workshop for repairs, service and panel beating of

earthmoving equipment and commercial vehicles. Their letter is Exhibit GKM11 and it refers to the continuous

noises associated with banging, grinding, sanding, welding and with exhaust fumes from old commercial

vehicles being continually revved every day of the week including Saturdays and Sundays. They found this

activity to have reached an unbearable level. They considered that commercial activities were being carried

out on the land. These complaints are supported by the daily recording sheets attached to their letter. The

council have written a number of letters to the respondents and had meetings with them, but to no avail. Mrs

Vance wrote to the council in September 1997. I cannot accept what she says in that letter, which is Exhibit

GKM5. The evidence establishes more than an infrequent servicing of machinery and more than the carrying

out of minor repairs on machinery. It also establishes more than a mere storage of certain machinery items on

the land. Mrs Yvonne Horwood has sworn an affidavit and this was filed on the application. Paragraphs 6 to 9

of that affidavit deal with the position as observed by her in June 1997. Effectively, but in varying degree, that

activity has continued up until the present time. The photos, Exhibit YH1, represent some of her observations

in June 1997. She also took the photographs YH4 in March and April 1998 and those in YHA8 in March and

August 1999. These satisfy me that the land has been and is being used for an activity of an industrial nature,

contrary to the provisions of the Planning Scheme. In paragraphs 19 and 21, she refers to specific problems

she has in relation to the activities carried out on the land by the respondents. I accept what she says. In my

view, the evidence establishes that these activities are likely to continue, notwithstanding the council's attitude

to their continuation as expressed by council officers to the respondents. The respondents appear to me to be

completely ignoring the provisions of the Planning Scheme. They are, in my view, conducting an industrial

type business on and from the land and to do so is contrary to the provisions of the Planning Scheme. �Light

industry� is defined on pages 15 and 16 of the Planning Scheme and, in my view, the respondents are using the

land for such a purpose. �Industry� is defined on pages 4 and 5 of the Planning Scheme and the activities

being carried out on the land by the respondents clearly come within that definition as including the breaking

up or dismantling of vehicles or heavy equipment; the repairing, renovating or servicing of vehicles and

machinery; operations connected with the installation of equipment and services related to vehicles and


38

machinery and the dismantling of motor vehicles and machinery. The activities certainly go far beyond what is

contemplated by a �home occupation� as that is defined pages 12 and 13 of the Planning Scheme and also

�home industry� as that is defined on pages 13 and 14 of the Planning Scheme. The activities being carried

out on the land by the respondents would appear to be encompassed by what is referred to as a �contractor's

depot or yard� in the definition of �light industry� on page 16 of the Planning Scheme. The activity carried

out by the respondents is clearly causing an interference with the amenity of the area by reason of the emission

of noise, smell and fumes within the definition of �light industry� on page 16 of the Planning Scheme. Giving

the term �contractor's depot or yard� an ordinary everyday meaning, it is clear to me that the activities being

carried out by the respondents which I have referred to in summary clearly come within this term. The

evidence satisfies me that the respondents are conducting some type of trucking and/or earthmoving business

involving a combination of vehicle movements, loading and unloading of machinery, mechanical repairs and

panel beating. Such activities are not allowed in the rural zone. Such activities, in my view, are also beyond

the definition of �home industry� which is an activity allowed in a rural zone with the consent of the council.

In any event, in the present case, there is no such consent. In my view, the applicant is entitled to relief of the

nature claimed. I declare that the respondents' use of the land, lot 402 on Crown Plan H25327, County of

Cardwell, Parish of Herberton, for activities of the nature defined in the Planning Scheme of the Council of the

Shire of Herberton as �light industry� are unlawful and amount to a use beyond those uses permitted by

column 1 of the Table of Development � Rural Zone in section 3.1.2 of the Planning Scheme for the Council of

the Shire of Herberton. I order that the respondents by themselves, their servants or agents be forthwith

restrained and an injunction is granted restraining them from using the land, lot 402 on Crown Plan H25327,

County of Cardwell, Parish of Herberton, for activities of the nature defined in the Planning Scheme of the

Council of the Shire of Herberton as �light industry� and being activities beyond those permitted by column 1

of the Table of Development - Rural Zone in section 3.1.2 of the Planning Scheme of the Council of the Shire

of Herberton unless the respondents first obtain development approval from the Council of the Shire of

Herberton.

22. In Barro Group Pty Ltd v Girgenti [2001] QPELR 175 Judge Wall QC dismissed an application for declarations

relevant to the use of land pursuant to Sections 183 and 183 of the Transport Infrastructure Act relating to the

extraction, crushing, screening and stockpiling and gravel. The question to be determined was whether or not the

development was exempt or assessable under the Integrated Planning Act 1997. The following comments

appear:-

��..

(2) The Respondent's land is zoned Rural B. under the Planning Scheme for Thuringowa City Council. The

planning scheme is a transitional scheme and under the scheme the land can only be used for an extractive

industry with the consent of the council i.e. with development approval.

(3) The use of the land for the extraction, crushing, screening and stockpiling of gravel is occurring under or

as a result of a notice issued under ss. 183 and 184 of the Transport Infrastructure Act 1994 (TIA). These

activities would appear to come within the definition of �extractive industry� in the planning scheme.


39

(4) A development permit from the council is necessary for assessable development but not for self-assessable

or exempt development, s.3.2.4(1) and (2) Integrated Planning Act (IPA). It is an offence to carry out

assessable development without a development permit, s.4.3.1 IPA. Self-assessable development has no

application in this case. For present purposes, all development is exempt development unless it is assessable

development, s.3.1.2(1) IPA. For the purposes of a transitional Planning Scheme the term "assessable

development" has the meaning ascribed to it in s.6.1.1 IPA. "Exempt development" is defined in Schedule 10 as

development other than assessable or self-assessable development. IPA binds all persons including the State,

s.1.5.1(1) IPA.

(5) In the present case "assessable development" means development specified in Schedule 8, Part 1 IPA and

to the extent that it is not inconsistent with Schedule 8, Part 1 development that before the commencement of

IPA would have required an application to be made for town planning consent for uses that were permissible,

(s.6.1.1. IPA �assessable development� definition, paras (a) and (b)(ii)). S.3.1.2(2) IPA provides that Schedule

8 may identify exempt development that a Planning Scheme cannot make assessable development. Schedule 8

does that in Part 3. Schedule 8 Part 3, s.17 IPA is relied upon by the Respondent for the contention that the

present activity is exempt development. Sec. 17 exempts operational work if the work is carried out by or on

behalf of a public sector entity authorised under a State law to carry out the work. Such work does not require

a development permit from the council.

(6) The Department of Transport (DOT) is carrying out road works on the Bruce Highway between Eleanor

Creek and Gap Creek. Nordev Contractors Pty Ltd (Nordev) has a contract entered into in about June 2000

worth $1,095,404.00 to supply 60,000 tonnes of gravel for that job. The gravel apparently has to be of a

particular size. To be useable the gravel must be crushed and screened. Pursuant to an arrangement with the

Respondent, Nordev extracts the gravel from a pit on the Respondent�s land using an excavator or loader and

it is then transported by truck some 350m where it is put through �the crusher, screening and conveyor

system.� It is then stockpiled and before being transported to the job it is blended with cement and water. The

gravel has to be crushed to make it useable. As at the 19th September Nordev had extracted, crushed and

screened all of the gravel and transported 12,000 tonnes to the job. The balance was stockpiled. If Nordev was

prevented from using the stockpiled gravel it would face a loss of about $500,000. To transport the gravel 20

kms to an alternative crushing site would increase the cost to Nordev by about $240,000. This extra cost was

not factored into its contract with DOT. These figures were not disputed by the Applicant. The gravel is said to

be essential for the proper and orderly completion of the road works.

(7) The Respondent contends that the work undertaken by Nordev is operational work carried out on behalf of

a public sector entity � DOT � authorised under a State law � TIA� to carry out the work. The DOT is a public

sector entity as such an entity is defined in Schedule 10. It is agreed that Nordev is carrying out the work on

behalf of DOT and that to allow Nordev to do so DOT (or Nordev as its agent) is with the consent of the

Respondent, temporarily occupying and using the Respondent�s land pursuant to a TIA notice under ss 183

and 184 TIA dated 26 June 2000. The Respondent�s land is principally used for growing sugar cane and to a

lesser extent for cattle.

(8) Under s.183 TIA the Chief Executive DOT or anyone authorised in writing by the Chief Executive may

�temporarily occupy and use land and do anything on the land that is necessary or convenient� to carry out

miscellaneous transport infrastructure works which this work is conceded to be.


40

(9) The Respondent concedes that for Nordev�s work (i.e. the use and occupation of the land by DOT) to

amount to exempt development it must come within either para (a) or para (e) of the definition of �operational

work in s.1.3.6 IPA. Those paragraphs define operational work as:

�(a) extracting gravel, rock, sand or soil from the place where it occurs naturally; or

(e) undertaking work (other than destroying or removing vegetation) in, on, over or under premises that

materially affects premises or their use.� �Premises� includes land, schedule 10 IPA. If the work does not

come within paras (a) or (e) it is clearly assessable development requiring a development permit. The

Applicant relies on schedule 8, Part 1, sec. 6, IPA which provides that assessable development includes

development prescribed under a regulation under the Environmental Protection Act 1994 (EPA) for sec.6 for

carrying out an environmentally relevant activity under that Act.

(10) If the work carried out by Nordev amounts to the start of a new use of the land then it is prima facie

assessable unless it is exempt. See Environment Protection Regulation 1998, s.63A and Schedule 9, s.1.3.5 IPA

(definition of material change of use of premises) and Schedule 1 items 20(b) and 22(b) EPR. For reasons

which I will refer to later I think the work does amount to the start of a new use of the premises. The extraction

of the gravel is though exempt development because it is clearly within para (a) of the definition of operational

work. I think that para (e) of that definition encompasses work other than the extraction of gravel because

such work is already dealt with in para (a). It is difficult to understand precisely what is meant by para (e) but

I do not think it encompasses crushing and screening. In my view IPA by its incorporation of Schedule 1, EPR

evinces an intention to include the extraction, crushing and screening of gravel as assessable development

unless it can clearly be said to be exempt. Para (a) is clear so far as extraction is concerned. In my view had

the legislature intended to also make crushing and screening exempt it would have included that work in para

(a). In the circumstances of the present case I do not think that the crushing and screening is work which

materially affects the land or its use. I agree with Mr Baulch S.C. that the land merely provides a site for that

to happen. I cannot agree with Mr Monteith S.C. that to set up a crushing and screening plant materially

affects the land or its use in a relevant sense because it has an effect which is material or amounts to a use that

the land would not otherwise be put to. I concede though it is a fine line and minds could differ.

(11) The application was argued on the premise that use pursuant to ss 183 and 184 TIA is subject to IPA. The

State is bound by IPA and it cannot otherwise than by IPA make exempt what IPA makes assessable. IPA not

TIA governs whether development is exempt or assessable and in the present case IPA only exempts the

extraction of gravel.

(12) The Respondent submitted that if the crushing and screening work did not come within para (e) it was,

with stockpiling, nevertheless a use of the land which is incidental to and necessarily associated with the use of

the land for extracting gravel within the definition of �use� in Schedule 10.

(13) In my view it is clear on the evidence that crushing and screening are separate and additional processes

to extraction and go �beyond mere extraction and involve a voluntary extension of what the operation would

otherwise involve.� Both processes could be carried out elsewhere on a site specifically authorised for them.

Mr Rains of Nordev implied that an authorised crushing site does exist some 20 km from the subject land. See

Boral Resources (Qld) Pty Ltd v. Cairns City Council (1997) 2 Qd R 31 at 35-36 which was a case with some

similarity to the present although the definition of �use� while similar to the present was differently worded.

Were it not for this decision and the particular fact situation now before me I would have had no difficulty in

declaring crushing and screening to be assessable development.


41

(14) According to Boral the following factors are relevant to whether a use, work or process is incidental to

and necessarily associated with an authorised use or operation:

(a) Whether the additional process constitutes a use which is unavoidably involved in the authorised

operation.

(b) Whether the authorised operation will become uneconomic unless the additional process is included within

it.

(c) Whether the additional process can be regarded as inevitably involved in the authorised operation.

(d) Whether the authorised operation is the significant use and the additional process is only insignificantly

present so that it can be regarded as no more than merely technically in existence.

(e) The character of each operation or process. See also Agtec Holdings Pty Ltd �v- Kilcoy Shire Council

[1999] QPELR 208 at 213-215.

(15) Apart from the fact that the TIA notice refers to the removal (extraction) and crushing of material (gravel)

I would not consider crushing and screening to be uses unavoidably or inevitably involved in the extraction

process nor as uses only insignificantly or technically present. Their character is also different to extraction.

The evidence does however satisfy me that in this particular instance the extraction of gravel by Nordev would

become uneconomic and financially ruinous unless the extracted gravel could also be crushed, screened and

stockpiled as required by Nordev�s contract and envisaged by DOT and the TIA notice. Relevant to this

conclusion is also the fact that the local authority and the Environmental Protection Agency have advised

Nordev and the Respondent that all of the activities or uses are exempt. I consider this advice to be wrong but

its effect on the economics of the whole operation are readily apparent. Some may doubt why the economics of

a particular operation or use should be a relevant consideration in this context but at least in a situation such

as the present where the use is of a temporary nature it does facilitate recognition of a situation which all

involved consider lawful. A somewhat different approach may be required if all of the activities were being

carried on permanently. The economic factor is probably not necessarily a relevant factor in all cases but only

those warranted by their particular circumstances. I regard the possibility of financially ruinous consequences

as allied to the economic factor certainly in a temporary use situation such as the present. For similar reasons

stockpiling in this case would be incidental to and necessarily associated with the extraction process and the

same could be said for its removal from the premises; without being able to remove the gravel there would be

no point in extracting it. See Pioneer Concrete (Qld) Pty. Ltd. �v- Brisbane City Council (1980) 44 LGRA 346

at 358-9 and Noosa Shire Council �v- Settlers Cove Development Pty. Ltd. (1996) 93 LGERA 232 at 243-4.

But for Nordev's antecedent contract with DOT crushing and screening would have been assessable

development. Any increase in the future cost of road works must be related back to IPA, alternatively

development approval should be sought for such activity associated with exempt extraction under a TIA notice.

(16) The letter which accompanied the TIA notice of entry refers to the need to meet "environmental and

legislation requirements" and I think the requirements of IPA are just that. Nordev is engaged in consultant

engineering and earthmoving contracting activities. It owns mobile crushing equipment and carries on

contract mobile crushing operations. It has been granted an itinerant licence NR269 under EPA �in respect of

carrying out the environmentally relevant activities� encompassed by items 20(c) and 22(c) Schedule 1, EPR

�as an itinerant activity throughout Queensland�. The licence is described as an �environmental authority�

and is issued subject to conditions. The notes accompanying the licence advise that the licensee may have


42

additional legal obligations under the EPA, the Contaminated Land Act and other obligations at law created

by the Federal, State and Local Governments.

(17) On 23 June 2000 the Operations Manager (Licensing), Townsville of the Environmental Protection

Agency, wrote to Nordev advising that in the view of the agency "NR269 authorises extraction, crushing,

screening and stockpiling at sites not subject to the provisions of the Integrated Planning Act 1997", that the

Agency had determined that the subject quarry site (Ollera Creek quarry) was not abandoned and

recommencement of the ERAs was not a new use and not subject to IPA1997 and that Nordev's itinerant

licence authorised those activities at the quarry. On 31 August 2000, the agency repeated this advice to the

Applicant's solicitor adding that the pit was on freehold land and had a long history of use from time to time as

required to fulfil Department of Main Roads (MRD) contracts for the reconstruction and maintenance of the

Bruce Highway.

(18) For present purposes four things can be said about this advice:

(a) The licence recognises that other State legislation may impose obligations on Nordev (and implicitly on the

owner of the land)

(b) It assumes that extraction, crushing, screening and stockpiling is occurring at a site not subject to the

provisions of IPA.

(c) It assumes that the site was not abandoned and recommencement of extraction, crushing, screening and

stockpiling is not a new use and not subject to IPA.

(d) It assumes that IPA has not altered the position of a TIA notice of entry and use of land. In relation to each,

IPA is other relevant State legislation, the site is subject to IPA to the extent I have already mentioned,

whether the activities amount to a new use of the site must be determined by reference to IPA and IPA does

bind the State and thereby does affect the ambit of activities allowed under a TIA notice. I should also mention

that the Thuringowa City Council takes the view that no development permit is required �as the activities are

being carried out under the provisions of the TIA�.

(19) The Respondent's alternative contention is that the use of the land for extracting, crushing, screening and

stockpiling gravel pursuant to a notice of entry under the TIA is lawful because it was lawful before the 30

March 1998, the date IPA commenced. Reliance is placed on S.1.4.6 IPA and reference was made to the

definitions of "lawful use" and "material change of use" in ss.1.3.4 and 1.3.5.

(20) The Applicant conceded that before IPA commenced activities such as it now complains of carried out

pursuant to a notice under the TIA or a like notice constituted a lawful use of the land and were not subject to

the planning scheme of the local authority, see Local Government (Planning and Environment) Act (PEA)

s.1.4 (definition of "Crown Land") and s.2.21(2)(b) Transport Infrastructure (Roads) Act 1991, s.7.6(1) and

TIA s.33. This I think is a crucial distinction between then and now. IPA binds the State and exempt

development is not assessable development under the transitional planning scheme. Fewer activities are

encompassed by exempt development in the present case (Schedule 8, part 3, s.17) than was the position under

the PEA when land was used pursuant to a TIA notice.

(21) The Respondent contended that the relevant use for this argument was the extraction of material which, it

was submitted also encompassed its crushing, screening and stockpiling. The land is predominantly used for

sugar cane and cattle. The quarry pit which has been used for some time and from time to time under TIA

notices and like notices. Material from the pit has been used since the early 1980's to complete works

contracts for MRD. MRD has occupied the land from time to time pursuant to the provisions of the TIA or


43

earlier Acts. In about August 1996 MRD occupied the land and authorised W Wall & Sons to carry out works

on its behalf by entering upon the land for the purpose of extracting, crushing and stockpiling material form

the pit. The material was then extracted over a few weeks in 1996 and crushed and stockpiled in January-

March 1997. Other contractors acting on behalf of MRD, entered the land and removed the material as and

when it was required for works contracts. The last load of material for that particular job was removed from

the land in March 1998. Penna & Co Pty Ltd entered and used the pit on behalf of MRD in September 1994 as

did Brabon Haulage in February 1985 and Readymix in 1986. The use by W. Wall & Sons may have been

under the same TIA notice used by Penna & Co.

(22) The plan and the drawing attached to the Nordev TIA notice of entry show the "existing pit" and the area

of "new excavation" for Nordev's purposes which is an area 50m x 150m and the proposed location of the

crushing plant. The "new area" is effectively a continuation of the existing pit. MRD considers "the operation

(by Nordev) as a continuation of the occupation of the land under the provisions of the TIA".

(23) The use of the land for MRD purposes seems to me to be an occasional use depending on what roadwork

is being undertaken, its location, when it is undertaken, and perhaps the choice of contractor. In this sense it is

not a continuing uninterrupted use but one which occurs from time to time but from an existing albeit

expanding pit or quarry located on the land.

(24) One must ask �what, according to ordinary terminology, is the appropriate description of the purpose

being served by the use of the premises at the material date�, the 30 March 1998? Hudak �v- Waverley

Municipal Council (1990) 18 NSWLR 709 at 714. The land was being lawfully used for cattle, sugar cane and

occasionally for extractive industry purposes as a result of TIA notices or the like. That was its use at the

relevant or material date. Before that date the land was occasionally and legislatively converted to Crown

land not subject to the relevant planning scheme. So far as the resultant use was concerned it was a temporary

occupation and use by the Crown and its servants or agents for a particular purpose and because of

s.2.21(2)(b) PEA that use was not subject to the planning scheme for as long as the premises remained Crown

land, i.e. for the duration of the occupation and use. The Respondent did not possess any equivalent use rights,

the Crown did subject to the statutory regime in force from time to time. There was no right in the

Respondent to use the land for such a purpose; there was a right in the Crown exercisable from time to time

depending on the particular circumstances. The use of the land for such a purpose was not by virtue of the

planning scheme rather it was because the planning scheme was deemed not to apply when it was so used but

in saying this I recognise that s.1.4.6 does not say �a lawful use because of (or under or by reason of) the

planning scheme� but merely �a lawful use� of the premises. After 30 March 1998 the Crown still had a right

to use the land for a similar (but not identical) purpose but it was more circumscribed and not as extensive.

The Respondent had no non-conforming use rights which he could register with the Council.

(25) Mr. Baulch SC contended that there was no maintenance by the Respondent of any use. He submitted

there was no use other than when the Director- General, Department of Transport compulsorily used the land.

In such a case the Respondent �doesn�t have a choice in it, he doesn�t have a relevant intention about

abandoning the use or maintaining it� and in the circumstances �it�s a nonsense to say that it�s a continuing

use where it is an occasional compulsory acquisition of material from his property�.

(26) The resolution of this issue involves �matters of fact and degree� (Woollahara Municipal Council �v-

Banool Development Pty. Ltd. (1973) 129 CLR 138 at 140) and the line to be drawn �may be an extremely fine

one� (Eaton & Sons Pty. Ltd. �v- Warringah Shire Council (1972) 25 LGRA 369 at 372). A provision such as


44

s.1.4.6 is �designed to preserve and protect existing rights� and �ought to be liberally construed�. (Fogg

�Land Development Law in Queensland� p. 671 and Parramatta City Council �v- Brickworks Ltd. (1972) 128

CLR 1 at 25).

(27) The authorities also speak of the relevance as factors to consider of the physical operations on the land

and the intention of the owner of the land. The physical operations were carried out transiently and not by the

owner or according to or with regard to his intention but I concede that they nevertheless amounted to a

lawful use of the premises. The fact that the use (for extractive industry purposes) was occasional and not

constant is not necessarily fatal to the Respondent's argument but its resumption from time to time had nothing

to do with his intention. The use before 30 March 1998 and its use since, notwithstanding a break of more than

2 years, is the same use or type of use; the �purpose being served by the use of the premises� is the same.

(28) On balance however I do not think that the relevant use of the premises in this case is the type of use

which is protected by s.1.4.6(1) IPA. The �use� signalled out for protection is a use governed or permitted by

the planning scheme. Immediately before (and after) 30 March 1998 the use of this land according to the

planning scheme was for Rural B purposes. That use has not changed or been restricted, lessened or dismissed

by IPA. Alternatively at the time IPA commenced no use was being made of the premises pursuant to the TIA.

That use had ceased and it could not have been said that any such use of the premises would again be made

after that date. In fact it was not until 26 June 2000 that such use of the premises again commenced and that

occurred as a result of a new notice under the TIA involving a new job and a different contractor (Nordev).

Each TIA notice represented the start of a new use of the premises. The use of the premises by the Director-

General pursuant to a TIA notice immediately before 30 March 1998 had ceased by that date. The Director-

General did not again so use the premises until 26 June 2000 and then did so pursuant to a new notice under

the TIA. This was the start of a new use of the premises albeit for a similar purpose.

(29) Alternatively again it was the re-establishment on the premises of a use that had been abandoned. In

Hudak, supra, Mahoney JA said at p. 713 "Abandonment ordinarily involves, at least as one part of the

concept, that, at the relevant date, the land was being used for the purpose claimed as the existing use and that

that use has subsequently been given up or has ceased.�

(30) In the present case the use of the premises involving W. Wall & Sons and the MRD haulage contractors

ceased before 30 March 1998. That use then was �no longer in existence�. See Shanahan Crash Repairs Pty.

Ltd. �v- Port Adelaide City Corp. (1978) 20 SASR 491 at 511 and Hudak, supra, at p. 716. The use of the land

was discontinued or terminated and it was not known if it would ever recommence or commence afresh. Each

case is different and notwithstanding the distinction suggested by Prof. Fogg, supra, at p. 687 between

�abandonment� on the one hand and �discontinuance�, �cessation�, and �termination� on the other I think

they are synonymous in the circumstances of this case. The physical cessation of relevant activities is a

relevant consideration in this area. See William McKenzie Pty. Ltd. �v- Leichhardt Municipal Council (1964)

10 LGRA 137. It is not without relevance that the notice under the TIA is headed �Temporary Occupation and

Use of Land � Notice of Entry or Permission to Enter�. In my view the development in the present case started

after 30 March 1998 and would, but for the effect of Boral in this particular instance and to the extent already

indicated, be assessable development. See IPA s.1.4.6(4).

(31) Sec. 6.1.51A IPA was also referred to in argument. The Respondent conceded on the facts here that it had

no application and I think that concession is correct.

(32) For these reasons the application will have to be dismissed.


45

23. There are not many decisions of the Planning and Environment Court relating to costs because the general rule is

that each party pays its own costs. However, Judge Wall QC made an order for costs against the Local Government

in Evans v Townsville City Council [2000] QPELR 337. There was a failure of the Local Government to comply

with Section 4.1.40(2) of the Integrated Planning Act 1997. The order for costs was made under Section

4.1.23(1)(e) and (i) of the Integrated Planning Act 1997. Subparagraph (e) is where a party has incurred costs

because another party has defaulted in the Court’s procedural requirements. Subparagraph (i) arises where the

Local Government (among other parties) does not properly discharge its responsibilities in the proceedings.

Overview of the Integrated Planning and Other Legislation

Amendment Act 2001

24. There are many changes to the Integrated Planning Act 1997. These have not yet come into force. The changes

can be broadly described in the following areas:-

(a) Existing rights

(b) The introduction of a new compliance stage in IDAS

(c) Changes to the infrastructure provisions

(d) New EIS provisions.

25. There is also some changes to private certification.

26. It is not possible in this overview to be exhaustive. A number of quotes have been taken from the Explanatory

Notes to summarise a number of the provisions of the new legislation.

27. It should be noted that the numbering in the legislation may change from time to time. This is especially so when a

new reprint is authorised by the Parliamentary Counsel. The section numbers that I refer to are those set out in the

Explanatory Notes. You will need to check as time goes by to make sure that those numbers have not changed.

28. The objects of the legislation as set out in the Explanatory Notes are:-

The objectives of this Bill are to :

• improve the operation of aspects of the Integrated Planning Act 1997 (IPA), in particular the Integrated

Development Assessment System (IDAS) by:

� changing the way some key aspects of the Act operate;

— removing some requirements and procedures that are not adding value to the planning and

development assessment system;

— clarifying and simplifying the operation of other aspects of the IPA; and

— removing anomalies and improving the text.


46

• implement IDAS for a development related approval in the Electricity Act 1994 (the Electricity Act).

• amend the Building Act 1975 (the Building Act) for consistency with an amendment to the IPA.

• Amend the Local Government and Other Legislation Amendment Act 2000 to omit a redundant

uncommenced section.

• Amend the Sewerage and Water Supply Act 1949 for consistency with changes made in this Bill; and

• Amend the Water Act 2000 for consistency with the provisions of this Bill.

29. The reasons for the legislation have been set out in the Explanatory Notes as follows:-

In August 1998, the Minister for Communication and Information, Local Government and Planning

announced an operational review of the Integrated Planning Act 1997 (IPA), to commence during the first half

of 1999. Public submissions were invited for the review in May 1999, and 120 submissions were received.

These were assessed and a preliminary

report was produced recommending various legislative and administrative changes. The report was the basis

for extensive discussions with key stakeholder groups about the actions that should be taken.

The main reason for the legislation is to make the legislative changes agreed with stakeholders to reflect the

findings of the review, and to refine the way in which parts of the IPA operate. The Bill also seeks to clarify

local governments� power to charge private certifiers a fee for carrying out certain statutory building

functions.

Way in which the objectives are to be achieved

The objectives of the Bill are to be achieved by amending the IPA and related legislation to implement the

findings of the operational review of the legislation.

30. Many of the provisions in the Act are designed to clarify and enhance the rights and liberties of individuals. This is

described in the Explanatory Notes as follows:-

Many provisions in the Bill are designed to clarify and enhance the rights and liberties of individuals.

Examples include:

• Changes to division 4 of chapter 1 of the IPA designed to simplify and clarify existing use rights. The

changes have combined and rationalized the existing provisions to make them easier to interpret, without

changing their intent or scope.

• Changes to the bases on which owners may seek early acquisition of designated premises on hardship

grounds (section 2.6.19) have been expanded to allow owners with the benefit of existing development

approvals to seek acquisition if the designation has made the proposed development unviable. Previously,

the provisions only applied to development applications that had, or were likely to be refused.

• The powers of the Planning and Environment Court to make findings of substantial compliance with

procedures have been expanded to apply to all proceedings, instead of only appeal proceedings (section


47

4.1.5A). This will ensure person�s rights to hearings are not compromised on the basis of technicalities

concerning processes.

Some provisions in the Bill may adversely affect the rights and liberties of some individuals. However careful

consideration has been given in developing these provisions to ensure that any effects on individuals have been

limited, and are justified having regard to the public benefits of the provisions. These provisions are:

• Changes to designation arrangements (sections 2.6.15 and 2.6.19) for when an interest only (such as an

easement) is taken over the designated land. The changes prevent designations ceasing to have effect after

six years because technically the land would still be in private ownership. They also prevent owners

seeking acquisition of the owners� remaining interests on hardship grounds. Both of these changes

address anomalies in the existing arrangements, which do not account for the taking of easements, and

while ostensibly reducing owners rights, are of little practical disbenefit.

• Changes to the bases on which owners may seek early acquisition of designated premises on hardship

grounds which effectively combine two currently separate grounds related personal circumstances (as

opposed to development related circumstances discussed above). The two grounds concern the need to sell

land for personal reasons, and the inability to obtain a fair market value. Whereas these grounds may

currently apply independently, their combination in the Bill means that early acquisition on hardship

grounds may be claimed for personal reasons only, and where the owner has been unable to sell the land

at a fair market value. This potentially reduces the range of

available circumstances in which hardship may be claimed for personal reasons. However the changes

are considered justified having regard to:

— Practical difficulty in determining whether the inability to achieve a fair market value is related to the

designation, or a range of other factors which influence the market for the land; and

— The crucial need for clarity in applying the criteria for hardship, given the substantial financial risk

that may arise for designators, particularly for corridor designations which may affect hundreds, or

even thousands of owners. Faced with these risks, such designators may decide against designation,

which ultimately may expose the public to higher costs in providing the infrastructure.

• The declarations and orders powers of the Planning and Environment Court (sections 6.1.21 and 6.1.22)

have been modified to broaden the circumstances in which the Court can cancel a development approval.

Currently the court can only cancel an approval on the basis of fraud by the applicant. The Bill removes

this limitation, but replaces it with a requirement for the court to consider compensation for any person

who has suffered loss as a result of the cancellation. Experience in other jurisdictions suggests such a

power, when available, is only, if ever, invoked by the courts in the most extreme of circumstances.

However, without this power, development approvals that may have been given in error, and with serious

adverse consequences, would stand.

• The Bill enables �assessing authorities� to give enforcement notices for offences about extracting

material from Queensland waters without first giving a show cause notice (section 4.3.8). The provision is


48

related to the pending integration of development approvals for these activities into IDAS, and reflects

enforcement arrangements under existing legislation.

Some provisions in the Bill are proposed to have retrospective effect. In all cases, this is intended to reinforce

or clarify, and not compromise, the rights of persons under the IPA. The retrospective aspects of the Bill are:

• Sections 5.3.5(6) and (7) have been amended to clarify local governments have always had the power to

charge a fee set by resolution for accepting materials from private certifiers. The validating provisions do

not affect the outcome of legal action commenced before the legislative amendments come into force.

Similarly, the validating provisions will not affect any written agreements to settle claims parties have

entered into. The validating legislation is intended to merely clarify existing arrangements and

expectations among stakeholders.

• New section 6.1.35C has been inserted to confirm and protect rights obtained under preliminary

approvals before the commencement of the section.

Immunity from proceeding or prosecution

The Bill contains no provisions conferring immunity from proceeding or prosecution. However the powers for

the Minister to call in a development application in chapter 3 part 6 have been expanded to allow the Minister

to also call in an application to change or cancel a development approval. These provisions already exclude

appeals against the Minister�s decision, so the expanded call in powers will also exclude appeals. The

Minister�s decision is however subject to judicial review by the Planning and Environment Court under

section 4.1.21.

31. Regard for aboriginal and island custom consistent with the Commonwealth Native Title Act 1993 has now been

introduced as part of IDAS.

32. Section 4.2.3 dealing with the purpose of the legislation will be amended and that amendment is described in the

Explanatory Notes as follows:-

Clause 5 amends s 1.2.3(2) to replace the existing definition of �the precautionary principle� for the purposes

of the IPA, with the definition provided in the Intergovernmental Agreement on the Environment and the

Commonwealth Environment Protection and Biodiversity Conservation Act 1999. The amendment allows for a

consistent interpretation of the term for both Commonwealth and Queensland legislation.

33. There is a new meaning of the word development and the meaning of lawful use.

34. Relevantly, a material change of use includes an increase in the intensity or scale of the use but not a reduction in

the use.


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35. Whilst there is no intention to change the substance of Part 4 of Chapter 1 dealing with uses and rights it has been

changed to improve the structure and clarity of the provisions.

36. IDAS has been replaced. The Explanatory Notes set out the following:-

Clause 27 replaces chapter 3. Major changes to chapter 3 include:

• An application must be properly made and all time frames in the IDAS process start from the time an

application is properly made.

• Acknowledgement notices are no longer a concept under the Act. Instead an assessment manager must in

some cases endorse a copy of a properly made application and return it to the applicant.

• Non-acceptance notices must be sent if the assessment manager receives an application that is not

properly made.

• Improved provisions providing further guidance about the variation of a planning scheme as part of a

preliminary approval.

• Transitional referral co-ordination is moved to chapter 3 of the Act.

• The requirements for changing applications have been refined and are dealt with in separate sections

according to their effect on the IDAS process.

• The notification stage has been changed to a �floating� stage to be more flexible and responsive to

individual circumstances, in particular changes made to development applications in the course of the

IDAS process.

• Provisions for changing or canceling development approvals are consolidated in a new part 5A of chapter

3 of the Act.

• An additional stage is added to IDAS. The compliance stage will simplify aspects of the IDAS process by

allowing for development that simply requires assessment for compliance with certain standards proceed

straight through a simple compliance check. The stage will also apply for checking documents related to

development (as opposed to checking the development itself) for compliance.

37. A new concept of compliance development and compliance assessment has been introduced into IDAS.

38. The role of a preliminary approval and how it may override a local planning instrument is subject to the following

comments in the Explanatory Notes:-

Generally,

• the provisions for preliminary approvals which vary the effect of a planning scheme, previously limited to

material changes of use requiring impact assessment, can now accommodate a broader range of

development;

• an applicant for a preliminary approval that varies a planning scheme must apply at the same time for the

change to the scheme to be made;


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• all applications for preliminary approvals involving variations to the planning scheme will require public

notification. The only exception will be where a preliminary approval is �staged� and the development

being applied for is subject to code assessment because of the operation of a preliminary approval for an

earlier stage,

• a preliminary approval for a material change of use may vary the effect of the planning scheme for

aspects of development related to the material change of use. For example, a preliminary approval for a

material change of use for a �master planned community� may vary assessment requirements or include

codes for building work associated with the material change of use (eg for building height, bulk or

density), or associated reconfiguration (eg through lot size or other lot characteristics) A preliminary

approval for other development may vary the operation of the scheme only for that aspect of development.

• a variation to the operation of a scheme as a consequence of a development approval may only be in

response to an application dealt with under this section. A local government may not vary the scheme in

this way without an application seeking the variation. Any change to the scheme that is not the

consequence of a preliminary approval dealt with under this section, would need to be made using the

Schedule 1 process in the Act.

39. Some changes have been made to the application for development approval. A non acceptance notice is not dealt

with in a new Section 3.2.3. A new Section 3.2.4 sets out when applications must be endorsed as accepted.

40. Additional third party advice or comment is retained with the original Section 3.2.7 being renumbered as Section

3.2.5 and clarified.

41. A new Section 3.2.6 deals with public scrutiny of applications and related material.

42. As to the notification stage a new Section 3.4.2(3) has been added and the Explanatory Notes describe that as

follows:-

New subsection (3) makes an exception to the requirement for public notification if a preliminary approval has

already been issued for development and the application proposes certain changes to the way subsequent

development applications would be dealt with under the approval. There is no need to publicly notify the

application provided �

• the only change in the type of assessment is from code assessment to either self assessment or compliance

assessment, and

• any new code sought to be included in the preliminary approval to apply for subsequent approvals is

substantially consistent with codes contained in the existing preliminary approval.

43. As to Negotiated Decision Notices the Explanatory Notes say as follows:-


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This division has been drafted to deal with confusion about the relationship between suspension of the

applicant�s appeal period and making representations for a negotiated decision notice. The applicant may

suspend their appeal period in writing (under section 3.5.19) before making an application for a negotiated

decision notice (under section 3.5.18). The applicant may decide to take this course of action to give them

more time to prepare their application. Alternatively, and even if the applicant takes no action to suspend their

appeal period, the appeal period will automatically be suspended as soon as the application for a negotiated

decision notice is received.

44. A new Part 6 has been added to Chapter 3 dealing with the changing or canceling of development approvals. In the

Explanatory Notes the following appears:-

Part 6 replaces sections 3.5.22 to 3.5.26, section 3.5.33, and transitional section 6.1.44 with a separate part

dealing with all changes to development approvals. Division 1 deals with all changes (including changes to

currency periods and conditions) sought by application. Division 2 deals with changing or canceling certain

conditions by the assessment manager or concurrence agency without the consent of the owner or occupier of

land.

The scope for changing a development approval under division 1 of part 6 is limited in two ways.

Firstly, section 3.6.2(5) states a deciding entity must refuse an application for a change if it is satisfied that if a

fresh application for the development, including the change, was made at the time the original application was

made, it would need to be treated in a different way to that provided for under the division.

Secondly, the use of this part is limited generally by the definition of �development approval� for the Act. The

definition states the relationship between a development application and any approval of that application. The

scope of an approval cannot exceed (but may vary or be less than) the scope of the application. Therefore an

application to change a development approval is also limited to dealing with the development originally

applied for That is, no new aspects of development can be dealt with and added by a change, but aspects may

be varied or removed.

It is not intended that an application for change under the division be used where a new development

application is necessary. Because of these constraints, it is envisaged that only relatively minor changes,

limited to the jurisdiction and interest of the deciding entity, will be dealt with through this Part. For that

reason, provision is made (see section 3.6.2(1)) for an application for change to be treated in a similar way to

a simple development application, for which there are no referral agencies, and therefore no integration or co-

ordination of referrals or responses. The deciding entity for the matter will act as the assessment manager,

wholly responsible for the application.

45. A new Part 7A has been inserted into Chapter 5 and deals with Environmental Impact Statements. The Explanatory

Notes describe when the EIS process applies and its purpose and how to apply for terms of reference as follows:-


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Section 5.7A.1 (When EIS process applies)

This section provides for part 7A to apply to assessable development or to community infrastructure on land to

be designated, that is prescribed by regulation.

The part also applies for any proposal that is a �controlled action� under the Commonwealth Environment

Protection and Biodiversity Conservation Act 1999, subject to the written agreement of the chief executive.

Section 5.7A.2 (Purpose of EIS process)

This section states the various aspects of the purpose of undertaking the EIS process for a proposal.

Section 5.7A.3 ( Applying for terms of reference)

Subsection (1) provides for the action that must be taken by a person proposing development or proposing

designation of land for community infrastructure if part 7A applies.

Subsection (2) provides for the form of an application for terms of reference for an EIS under part 7A, and for

a fee to accompany the application.

Subsections (3) and (4) provide for when an EIS that is necessary under part 7A must be prepared if an

applicant proposes to make an application for preliminary approval.

46. The EIS provisions deal with the preparation of a draft EIS (Section 5.7A.6); the public notification of the draft

EIS (Section 5.7A.7); making submissions on the draft EIS (Section 5.7A.8); the Chief Executive evaluates the

draft EIS, submissions and other relevant material (Section 5.7A.9); EIS assessment report is prepared by the Chief

Executive (Section 5.7A.10); and who the Chief Executive must give the EIS and other material to is described in

Section 5.7A.13.

47. There have been some amendments to Schedule 1 dealing with the process for making and amending Planning

Schemes.

48. Schedule 8 has been replaced. This schedule deals with assessable and self assessable development.

49. A new Schedule 9 has been included. This describes what development is exempt. The Explanatory Notes say as

follows:-

The heading is changed to clarify that the schedule refers only to development that is exempt from regulation

under a planning scheme. Development listed under this schedule is not exempt from regulation under

schedule 8 (ie parts 1 and 2.). inclusion of these items under an entirely separate schedule also reinforces this.

50. There have been considerable amendments to Schedule 10 (Dictionary). The Explanatory Notes say as follows:-


53

Clause 85 replaces schedule 10. The substantial changes to the IPA in the Bill have meant that many new

definitions are included, others are amended, and others omitted. Numerous definitions previously included in

schedule 8 have also now been included in schedule 10 due to the splitting of schedule 8 up into schedules 8

and 9. Because of the extensive changes to the definitions resulting from the provisions of the Bill, and to

facilitate ease of use of the Bill, schedule 10 has been replaced entirely.

51. It is reasonable to expect that the Integrated Planning Act 1997 will stay the same way it is once these IPOLA

amendments have commenced. Now that the operational review and public submissions have been taken into

account and put into legislation it would be useful if the Integrated Planning Act 1997 could remain unamended

(except for minor amendments) so that all the stakeholders in planning and environment issues have the

opportunity of fully understanding the legislation without having to track major changes. That will help bring

certainty to the administration of development issues in Queensland.

52. It is important to note that the amendments have not change Section 4.1.48 dealing with Alternative Dispute

Resolution processes. While the legislation deals with these processes in the context of an appeal to the Planning

and Environment Court it is well recognised that Alternative Dispute Resolution (ADR) is a voluntary process

which can occur at any particular time in the development assessment procedures. Some parts of ADR can usefully

be used to assist in plan making. There are New South Wales examples of independent assessment of applications

where there are objections. All of these matters will be discussed in a seminar on ADR and Planning and

Environment Issues during 2002. The seminar series will come to Cairns, Townsville and Mackay in July, 2002.

The dates are as follows:-

Cairns, Thursday 18 July, 2002

Townsville, Tuesday 23 July, 2002

Mackay, Friday 26 July, 2002

Everyone who has responded to a questionnaire after attending the two seminars which have already been held in

the series agrees that ADR needs to be better understood by Stakeholders who deal with planning and environment

issues and that the seminar increased the level of understanding of ADR. For more information please go to the

webpage at www.ecodirections.com.

update on recent decisions of the planning and …ecodirections.com/pdf/ipola_paper.pdf · update...

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